How to Knock Out Super PACs with Lawrence Lessig

16:02Kara Swisher:It wouldn't be dark money. It'd be very light money. You could see it. You'd know who gave the money. Listeners might wrap scatically the idea that Roberts Court is going to make a good faith effort to reach a decision based on legal principles instead of political expediency, given recent history. But you think Justice Amy Coney Barrett or maybe Justice Neil Gorsuch might be willing to do that. How come?

16:22Lawrence Lessig:What's in it for them? Because if they were to go against us, they would have to change the law to even further reduce the ability to police a thing which everybody must recognize is now a huge problem within our government. I mean, you know, our initiative was passed was 75 % of the vote in Maine, you know, a very purple state. So people get it. People get it. On the right and the left, they get it. And I think that the point is, like, if it's recognized as not a partisan issue, but just a thing where people are just so disgusted with this money, what's in it for the court? And on the other hand, if the court ruled in our favor, you know, the country would be like, whoa, this is amazing.

17:04Lawrence Lessig:They are coming down with a decision that 80 % of us agree with, and they can do it without ever confessing any error in their earlier decisions. So I just don't see what the upside for them is. Whereas the downside, like that they would be seen as just furthering what everybody now perceives as this grotesque system of corruption would just be catastrophic, I think, for that institution.

17:27Kara Swisher:I mean, they have made it harder to prosecute corruption before. They're not bothered by precedent.

17:33Lawrence Lessig:Well, it's not clear that they were changing precedent in the kind of weird ways they've developed the interpretation of corruption statutes. But the point is, they would have to change precedent if they were to say that a state cannot regulate where everybody's acknowledging there's a risk of corruption. I mean, that's been the basic principle for 50 years when Buckley said, you can regulate contributions because we can see the risk of corruption there. But you can't regulate independent spending because that is not coordinated. And that non-coordinated speech, therefore, has no interest in regulation because if it's not coordinated, there can't be any quid pro quo.

18:15Lawrence Lessig:And quid pro quo is the only basis this court has recognized for limiting that speech.

18:20Kara Swisher:Right. So every episode, we get an expert to send our guests a question. Yours is about this campaign finance system as it is. Let's hear it. Hey, Professor Lessig, this is Ellie Honig.

18:29Lawrence Lessig:I'm currently CNN's senior legal analyst, but much more importantly than that, almost 30 years ago, I was a first-year student in your contracts class at Harvard Law School. And now I get to ask you a question for Kara's podcast. Okay. Is it a good idea to just scrap this whole system? It's a mess. There's loopholes everywhere. It's Byzantine. There's no transparency.

18:51Kara Swisher:No one can tell who's donating what to what candidate. Let's get rid of all of that and let's just go to a completely open system. No artificial caps, no limits.

19:00Lawrence Lessig:Let the First Amendment breathe, but full, immediate online transparency so we will all know exactly who's giving what to who. Is this a crazy idea? Could this work? And thank you for being a great professor many years ago. Yeah, it's great to see you again. Yeah, no, that'd be a disaster, a total disaster. Because, first of all, people imagine that transparency solves everything. Transparency solves nothing. Nothing. What it does is convince people that it is a corrupt system. I mean, look, we don't know precisely who the dark money comes from. But we know that dark money is in the system in order to buy results, which it does.

19:37Lawrence Lessig:So the point is that transparency would convince us of the problem. And what we know when we eliminate caps on contributions is that the number of relevant contributors increasingly shrinks. So you have a smaller, smaller number of people who are calling the shots. Right now, I think it's like 300 families that basically control what happens in our government. I mean, it's banana republic design. And so that's certainly not what the framers intended. Jim Madison promised us a House of Representatives, at least, that would be, quote, dependent on the people alone. And he went on to say by the people he meant— Not certain people.

20:14Lawrence Lessig:Yeah, not the rich more than the poor. Explicitly, not the rich more than the poor. Well, we've created a system where it's the rich more than the poor that our politicians are dependent on. And so is it surprising that they are just unable to do anything that addresses problems the vast majority of Americans want to see addressed?

20:32Kara Swisher:So how is this different than what you're saying of anybody can give anything? How does it change the super PAC status versus what he's talking about?

20:42Lawrence Lessig:Well, I mean, super PACs effectively now are the system that he's talking about. I mean, now he says, well, the advantage of just getting rid of everything and requiring transparency is we at least know who it is. And again, I'm saying I don't think we're getting anything from that. That's not going to shame most of them. So the point is, we'd still have a system where it's a tiny few who are able to leverage their power to control federal legislation. I would love a system where we have many, many more people who are contributing or part of getting money inside of the system. Because then, if money matters, it's mattering in a democratic way, a small d democratic way.

21:19Lawrence Lessig:It's what we all want. The problem right now is that when it's the super PAC money, it's what the tiniest fraction of a 1 % want. And it turns out the richest, whether they're Democrats or Republicans, don't want what average Americans want.

21:33Kara Swisher:Right, which is typically to protect their own fortunes. So where does it go from here? Where does the super PAC case go from here now?

21:40Lawrence Lessig:So we just filed the last briefs in the First Circuit Court of Appeals on Friday. And so now the court will decide when it will hear arguments. Hopefully they'll hear arguments this spring. if they hear arguments this spring and decide the case by the summer, that means we could be in the Supreme Court in the next term, which would be critically important. Because if we're in the Supreme Court the next term and the court goes with us, depending on how they write that opinion, that could end super PACs by 2028, which means the next presidential election won't be with a last where super PACs were dominating what both parties were able to talk about.

22:19Lawrence Lessig:You know, Many people look at Kamala Harris and they say Kamala Harris failed to address issues that ordinary people cared about. But I feel kind of sorry for her because the reason she couldn't is that her campaign was so tied down with the extraordinary amount of money it was taking from these super PACs or getting from these super PACs. But if you could eliminate that from the system, you would give them the freedom to be able to be who they actually want to be as opposed to who the money says they must be. And so there's a chance if we get this right and get this through the First Circuit quick enough that we could fix this problem by the next presidential election, but not by 2026.

22:58Kara Swisher:Not by 2026. So be clear, Elon Musk or any other billionaires who've been very active lately could still spend hundreds of millions of dollars on electing whoever he wants.

23:07Lawrence Lessig:So since Buckley 50 years ago, Elon Musk has been free to take his money and spend it independently of campaigns. Buckley created that power, not Citizens United. Citizens United extended it to corporations and labor units. But that was a kind of one small step from the idea that individuals could do it. So that still is going to exist until the Constitution is amended and Citizens United and Buckley have been overturned. But the point is, that's not the big problem. I mean, it's our focus because we look at Elon Musk. But the reality is, Elon Musk's money is not terribly effective anymore. Because when he comes into a district and he spends his money, like what happened in Wisconsin, the very fact that he's spending that money becomes an argument against it.

23:55Lawrence Lessig:So it's not the biggest problem. The biggest problem is the ability for people to be sucked into this system in a way that is hidden and makes it so the influence that they are exercising is not an influence that anybody needs to be accountable for. That's super PACs. And if we can end super PACs, we don't have a perfect system, but we can begin to move on to the kind of changes to the system that would actually make it an even better system.

24:23Kara Swisher:Right. One last thing. What is their best case against your case from your perspective? You've got to be sussing that out.

24:30Lawrence Lessig:Yeah, I think the strongest case that they've got is kind of, you know, like the question I just addressed. Why don't we just wipe all this away and let transparency rule? And the argument, so that's the argument that just let's step back and just have no regulation here at all. But the reason that's really troubling is that the whole idea of a democracy is that the Democratic representatives get to enact laws unless the Constitution clearly says they can't. And when you say that the Democratic legislatures are not allowed to address corruption, you've got to answer the question, when in our past did we the people in some supermajority way say, yes, we do not allow corruption to be addressed?

25:21Lawrence Lessig:Corruption must be constitutionally protected inside of our democracy. And the answer is never, never. That was never the resolution of We the People in 1787, in 1868. There was never a point where we said that. And so the real question for these activist judges is, who the hell are you to be blocking democratic legislatures? And, you know, in Maine's case, the largest number of Maine voters to vote for anything in the history of Maine, more than any candidate, more than any initiative. Who the hell are you to be saying no to them when you're not actually standing on anything that the Constitution ever articulated?

26:02Lawrence Lessig:It's just your own made up theory about money is speech and blah, blah, blah, that turns out to produce this zone where there can't be regulation. That's the argument against them. We'll be back in a minute. Thank you.

26:46Kara Swisher:vitamin, a greens gummy, or a prebiotic. It's all of those things and then some at a fraction of the price. And bonus, it tastes great. Gruen's ingredients are backed by over 35 ,000 research publications. While generic multivitamins contain only seven to nine vitamins, Gruen's have more than 20 vitamins and minerals and 60 ingredients, which include nutrient-dense and whole foods. That includes six grams of prebiotic fiber, which is three times the amount of dietary fiber compared to the leading greens powders and more than two cups of broccoli. It's a daily snack pack because you can't fit the amount of nutrients Gruens does into just one gummy.

27:22Kara Swisher:Plus, that makes it a fun treat to look forward to every day. Kick off the new year right and save up to 52 % off with the code Kara at Gruens.co. That's code Kara, K-A-R-A at Gruens, G-R-U-N-S dot C-O.

27:44Kara Swisher:Support for On With Kara Swisher comes from Gruens. If you're looking for a health goal that you can actually stick to, you might want to check out Gruens. Gruens is a simple daily habit that deliver real benefits with minimal effort. They're convenient, comprehensive formula packed into a snack pack of gummies a day. This isn't a multivitamin, a greens gummy, or a prebiotic. It's all of those things and then some at a fraction of the price. And bonus, it tastes great. Gruen's ingredients are backed by over 35 ,000 research publications, while generic multivitamins contain only 7 to 9 vitamins.

28:17Kara Swisher:Gruen's have more than 20 vitamins and minerals and 60 ingredients, which include nutrient-dense and whole foods. That includes 6 grams of prebiotic fiber, which is three times the amount of dietary fiber compared to the leading greens powders, and more than two cups of broccoli. It's a daily snack pack because you can't fit the amount of nutrients Gruen's does into just one gummy. Plus, that makes it a fun treat to look forward to every day. Kick off the new year right and save up to 52 % off with the code CARA at gruns.co. That's code CARA, K-A-R-A, at gruns, G-R-U-N-S dot C-O.

29:00Kara Swisher:Support for this show comes from Delete Me. These days, it's easier than ever for bad actors to get your information and exploit it. The good news is there's DeleteMe. I've tried DeleteMe many times. I use it all the time, and I think it's a really great service. It helps you find out what information is about you out there and how it's being collated by data brokers, most of whom do not have your best interests in mind. One of the things I'm always surprised about is how much bad information there is about me mixed with good information and about how they know everywhere I've lived for the past 900 years.

29:30Kara Swisher:It's ridiculous, but it's also disturbing. Delete.me makes it easy, quick, and safe to remove your personal data online at a time when surveillance and data breaches are common enough to make everyone vulnerable. With Delete.me, you can protect your personal privacy and the privacy of your business from doxing attacks before sensitive information can be exploited. The New York Times Wirecutter has named Delete.me their top pick for data removal services compared to the others out there, and I can attest to that. Take control of your data and keep your private life private by signing up for Delete.me, now at a special discount for our listeners.

30:00Kara Swisher:Get 20 % off your Delete Me plan when you go to joindeleteme.com slash Kara and use the promo code Kara at checkout. The only way to get 20 % off is to go to joindeleteme.com slash Kara and enter the code Kara at checkout. That's K-A-R-A. That's joindeleteme.com slash Kara, code Kara.

30:24Kara Swisher:So there's a lot of other cases in news related to election law. I want to ask you about a couple more. The Supreme Court is considering whether Section 2 of the Voting Rights Act is constitutional without its states could dilute minority voting pattern, potentially flip dozens of seats from Democrat to Republican. You ran for president in 2015. I don't think people remember that. I do. And one of your main platforms was strengthening the Voting Rights Act. Talk about the long-term consequences of gutting Section 2.

30:49Lawrence Lessig:Yeah, I mean, this is a disaster that is, again, without any basis in the Constitution, because we have an express constitutional amendment that is giving to Congress the power to address this problem, both in the voting context and in the 14th Amendment equality context. And instead of yielding to the decision of our framers to say Congress gets to make these laws, you have a court that increasingly arrogates to itself the power to second guess Congress's judgment. And again, by what right? Why did they get to do that? So it is an incredible step backwards, not justified by anything other than a political preference of those who happen to be in the majority right now.

31:32Lawrence Lessig:And I would think that at a certain point they would have the humility to recognize that whether they agree with the objective of equal freedom to vote or not, they don't have a constitution that gives them the legitimate power to block it.

31:48Kara Swisher:So the court is also concerning a case brought by California Republicans against Gavin Newsom. They're trying to block the state from redistricting in response to the new Texas map. You opposed gerrymandering, but you posted this on Twitter. Quote, every Democrat in the 117th Congress voted for the bill that would have ended partisan gerrymandering. Every Republican voted against the GOP didn't want to disarm. This is a consequence of their decision. Looking ahead, what's the most feasible solution to undoing all the extreme gerrymanders we're going to end up with?

32:17Lawrence Lessig:Well, Congress can address federal gerrymanders. So the bill that almost passed, the part of the For the People Act, would have ended gerrymandering. There wouldn't have been any of this game at the federal level. There still would be state gerrymandering because the Supreme Court has said that the Constitution does not block partisan gerrymandering. And, you know, the real question is whether the next Congress will be kind of exhausted by the games that went on in this election cycle and pulled back from it. And I think that what we need is people on both sides to begin to stake the principled position.

32:50Lawrence Lessig:Gerrymandering is terrible and we should end it. Now, I think that given that principle, it doesn't follow that you can't play the game so long as the rules are the way the rules are. Just like, you know, I set up a super PAC a decade ago to try to end super PACs. You know, and the point was we're going to do what we can under the existing rules to change the rules. So we'll play by your shitty rules. Yeah. We'll play by your rules. Right. But, you know, you can still be arguing and you should be arguing to change the rules to the right rules and the right rules would end this gerrymandering. The biggest reason for that is, you know, the political system is supposed to be responsive to what the people care about.

33:25Lawrence Lessig:But even if there's a overwhelming victory for the Democrats, it won't actually be that significant because so many of these districts have been drawn in a way that make it so that nothing really matters. People go to the polls, they know that my vote doesn't matter because it's been crafted in a way so the politicians are picking the voters rather than the voters picking the politicians. And so I think that we've got to recognize that we need to make democracy responsive to the people. And gerrymandering is one way in which it isn't. Money in politics is another way in which it isn't. Suppressing of the freedom of vote is another way in which it isn't.

33:59Lawrence Lessig:We need partisans on both sides to begin to take a principled position about the need to end this partisan pollution of our democracy. Well, it hasn't, though.

34:09Kara Swisher:The FBI raided Fulton County's election, talking about devaluing votes. Headquarters and seized all the ballots cast in the county in 2020, along with registration rules and other records. So what's the best strategy for maintaining a functioning democracy when Trump and the Republican Party seems committed to doing everything to ensure this one-party rule? Talk about this raid for people to understand what's happening.

34:29Lawrence Lessig:I mean, the strategy is to terrify these local jurisdictions.

34:34Kara Swisher:And their election officials.

34:36Lawrence Lessig:Yeah, their election officials, so that he can effectively exercise control over the election process. And that's wrong on two fronts. Number one, the presumption of our Constitution is that election systems are run locally. And the only exception to that is if Congress passes a law to make exceptions to that. And that law only governs federal elections. It doesn't govern state elections. And so Trump is, number one, believing that he has the right to control how states run their election systems and that he has that right even if Congress has enacted. So, for example, in Colorado, he punished the state of Colorado by saying, I'm going to take the Space Force headquarters and move it to Alabama.

35:17Lawrence Lessig:Why? Because you have mail-in voting. Now, first of all, the idiocy of criticizing mail-in voting as a form of corruption is just beyond measure. But the point is he has no power as the president to second guess Colorado's decision to have mail-in ballots. But he does have the ability to hurt them. He has a practical ability to hurt them. And this is the pattern we've seen with him again and again. It's this extortionist kind of mod boss-like pattern. It's like he knows if he sets the price of extortion, you know, low enough, you know, enough to hurt but not too much to make it so nobody would give into it, he can always win.

35:57Lawrence Lessig:That's what he did with nine law firms who caved to him, even though the legal basis he was asserting had zero basis in the law. That's what he did to media organizations, CBS, ABC, Amazon, Meta, all of these companies that basically realized even though he had no basis for his claims, were going to cave into him because it's cheaper than fighting. That attitude encourages the extortionist, and we see the consequence of it. And so when you ask what's ultimately going to stop it— Yeah, what's the best strategy? Well, you know, ultimately, all we've got left right now on the field is the court's willingness to step up.

36:34Lawrence Lessig:I mean, you know, the framers never thought that would be the solution. The framers thought separated powers would mean Congress would be the first line of defense against authoritarian precedent. Well, of course, our Congress is pathetic. You know, it's not doing anything. So then the second line of defense would be the people. But again, gerrymandering basically means that even the people don't have power enough to address this kind of threat. So the third line of defense, all that we've got left are the courts. And the problem is this court has so far been hesitant to draw clear lines that force him to behave, to live up to the legal standards.

37:10Lawrence Lessig:Now, you know, I have a bet with my colleague Jack Goldsmith. You know, he and I spend enormous amount of time talking through this. He thinks they're about to do something, a series of cases that will eventually draw sand in the line and force Trump to abide by the Constitution and that they've been waiting until he's weak enough to be able to do that. And I hope he's right. I don't see the evidence yet that that's what they're going to do. But if they do that, then that might be enough to staunch this effort in the states to basically terrify them into yielding power to the president so he can muck up the 2026 in midterm elections.

37:53Kara Swisher:What if they don't? I mean, what are we willing to do?

37:58Lawrence Lessig:You know, I'll sign up for anything. What do you know? I mean, this is a constitutional crisis. And, you know, we're so used to being able to engage in politics sort of, you know, sitting on our couch and like tweeting. You know, it might be that we need to get off our couch and like get into a context where we can begin to engage with other Americans. Now, I think the critical thing from my perspective is to find a way to talk across to other people. I did something before the last election I've never done, which is I went to a high school reunion. I grew up in the kind of Kentucky part of Pennsylvania.

38:33Lawrence Lessig:So I knew that most of my friends, you know, were going to vote for Trump. And I couldn't understand it. That's where my family's from, but go ahead. Is that right? Yeah. So I went back there to kind of talk to them because I said, you know, the values I feel like we grew up with, I don't understand how you can support this man. And one of my friends, he was a kind of high school sports star, so way above my, you know, coolness level. He and I started a podcast where we were trying to engage to kind of find, see why we don't agree or don't see the things in the same way. And it's been enormously enlightening.

39:08Lawrence Lessig:I mean, my favorite moment was like when he said, you know, we were talking about the J6 pardons. And he said, well, Larry, you know, at least he didn't pardon everybody. He only pardoned the nonviolent people. And I said, Ben, what are you talking about? He pardoned everybody. And it was clear to both of us that we all were living in our own little bubbles. And the only way to solve that is to launch a practice. I mean, it's not necessarily starting a podcast, but launch a practice of reaching across and trying to find a way to rebuild something of a common ground when the business model of media is committed to finding a way to break that common ground, to turn us into ignorant people who hate each other.

39:50Kara Swisher:Let's talk about that, the deleterious effect, because I do think it is linked to tech, AI and tech billionaires. This is my area. And a lot of tech billionaires, as you know, turned up in the recent Epstein files. And I think for people who haven't been part of that, don't understand how quickly, like you can have Steve Bannon hanging out with a Democrat and stuff like that. And like all the different interactions between these people, including Elon Musk, who emailed Epstein to ask about, quote, the wildest party on your island. Now, you made news a few years ago when you wrote an essay explaining why you signed a petition supporting Joey Ito.

40:23Kara Swisher:I wrote a very negative column about him in the New York Times, as you know. He was a former director of the MIT Media Lab. He resigned after the news that he had solicited and accepted donations from Epstein. I know Ito has spoken to you privately about the donations, and you didn't tell him not to take the money. In an essay, in fact, you said Ito shouldn't have taken the money and that you wish you'd counseled him not to. But you say if institutions accept money from people like Epstein, and he's the worst of them, but there's lots of gradations of this, they should do it anonymously to avoid laundering the reputations of these unsavory characters.

40:57Kara Swisher:And I want to understand how you think about this, because part of it is they also invade institutions, these tech billionaires and others, not just them. But they try to overtake these places that are supposed to be, as you say, fair and try to find common ground. Yeah.

41:15Lawrence Lessig:I mean, I wrote that essay because I was furious about the scapegoating that was going on. I mean, I also wrote an essay attacking Harvard because Harvard, you know, scapegoated Martin Novak, who's not a friend. I mean, I've never met Martin before. By writing a report that makes it seem like he did everything and the actual man behind the scenes, Larry Summers, never appeared anywhere in that account. And so I wrote that in 2021. Well, that's out now, but go ahead. Yeah, that's out now. Right. But the point is, in my view, the real problem are these institutions that put these people into a position where they do this, and then they hide and they say that we have nothing to do with it.

41:55Lawrence Lessig:Very much like Congress is what you're saying. Yeah, exactly right. But I want to be very clear about something because you came close to saying it exactly right, but I want to make sure that it's perfectly clear. I mean, what I said in that essay was that if you take money from a person like Epstein, you know, I can quote it exactly. It was a mistake to take this money, Epstein's money, even if it was anonymous. Now, that's different, I think, from, for example, taking money from a tax cheat. So if a tax cheat, you know, gets out of jail and he says, I want to give$50 million to MIT, MIT can take that money, just shouldn't launder the reputation of the tax cheat.

42:30Lawrence Lessig:But what I said in the essay was a case like this. Milken's a good example of that, right? Yeah, Milken's a good example. But Epstein is different because if you are a victim of sex abuse, you know, and as I said in that essay, I averted to a John Heilman article about me talking about the fact that I spent three years in a school being abused when I was 12, you know, 12, 11, 12, and 13, abused in a school as a child. So I feel this viscerally. This issue is visceral for me. And so what I said was in the context of that, even if it's anonymous, even if anonymous, you should not take money from somebody like that.

43:10Lawrence Lessig:Because, you know, if you're somebody who has been abused like this and you discover that the building you're in is funded by an abuser, that is a wrong, that is a harm that nobody should minimize. And so it was kind of bizarre to me how hard it was to kind of make that distinction because I, earlier in the essay, was describing the conversations Joey and I had. And what I was saying was, you know, suffering abuse, obviously, it fundamentally affects your judgment on everything. And I, at that stage, it was coming to the place where I was thinking I was overdoing it. Like, I was seeing abusers everywhere.

43:49Lawrence Lessig:I was completely condemning all sorts of things I didn't really have sure, wasn't really sure. And so when Joey asked me this and I said to him, like, are you sure that he is not, you know, what people worry about? And whether, you know, are you sure that he is not perpetrating this kind of abuse with minors? And Joey said, from what I can see, that's true. You know, the stupidity was I thought to myself, okay, you're going to react against this, and that's just your abuse speaking. So I backed off. I said, okay, if you're confident about that, that makes sense.

44:26Kara Swisher:So when you are thinking like that, because you were talking about the larger institutional problem of having to take money, because then on the flip side, you have someone like Bill Ackman bossing everybody around, right, with his own whatever strange set of mentality he has. But taking money is an institutional problem over a Joey Ito problem, whatever. As you say, force them into doing this. It's a complex issue. But explain why, you know, so say if dark money is bad in politics, on the other hand, institutions are going to have to take money from some people who aren't pure as the Durbin Snow.

45:00Kara Swisher:How can you do that with these institutions, for example?

45:03Lawrence Lessig:Yeah, it's really hard. I mean, you know, the first point is it's a terrible thing that we depend in all sorts of contexts. On the kindness of billionaires. Interested money. Yeah. Yeah, the kindness of billionaires. They're not kind. Not just because they're not kind, right? They also steer research in ways that have no necessary relationship to what's the direction it should go. So I think we've lost an enormous amount because we've handed over those decisions to, you know, smaller groups of people who can make them for reasons that are unrelated to what actually benefits. But I think that the point that the institution needs to think about is how do we preserve a reason for people to trust us?

45:42Lawrence Lessig:And if people think that the reason you're doing what you're doing is you're trying to suck up to your donor, they won't trust you. They won't trust what you say. And I don't blame them. I was once testifying in the days when I was doing work around the Internet, testifying about network neutrality. And I got a text from Senator Sununu who said to me, I can't believe you're up here shilling for Google. And I thought, holy shit, he thinks that I'm being paid by Google. And then I thought, well, of course he thinks I'm being paid by Google because most of my colleagues who would be coming to testify are actually testifying because they're being paid.

46:20Lawrence Lessig:Some of them acknowledge that, but not everybody acknowledges that. And that's part of the work that we were doing in the lab was to say this is wrong. Like, if you're going to be giving—and I have a disclosure statement on my website to say this—if you're going to be giving advice about policy, you cannot be taking money from the people who are interested in that policy. You cannot be in a position where you depend on them. And if you are, you shouldn't be talking about it. Like, we should be able to craft policy recommendations that are distinct from private dependents. I get it.

46:51Kara Swisher:But you know how insidious it is, is, like, Google News giving money to public. I mean, I got attacked. We didn't take the money, but you could see how easy it would be to do so. So I never particularly judged people for it. But it was so, you know, they'd invite you to like, let's talk about where news is going. I'm like, no, not with you. Like, you know what I mean? Like, you know that. You and I have been sort of privy that.

47:15Lawrence Lessig:I mean, we first have to admit it's really complicated, especially if we're going to depend on private support. But I think we should not turn away from it just because it's complicated. Yes, we need to draw complicated lines. And that's what my essay was trying to do. Now, I wasn't rewarded for that essay because it created all that trouble. But the point is, you know, we can say that certain kinds of contributors should be treated differently. So Taylor Swift wants to give money to universities. Celebrate it. Like, that money is pure. Like, it's wonderful. And if Google wants to give money, you know, I get that people are, like, conflicted about Google.

47:49Lawrence Lessig:But I also think there'd be clear Google's giving the money. But once you cross the criminal line, then there are two categories. Those you can do anonymously and those you cannot take at all. Epstein, given who he turned out to be, at least as people saw it, people came to see, should never have accepted any of that money at all. He was everywhere.

48:10Kara Swisher:I don't think people understand. You know, what I think was surprising for those emails was how he was everywhere. And I remember him being everywhere. you know, all the events and showing up with lots of money and dinners and stuff like that. He was trying very hard to launder himself and people allowed him to do it. You've characterized the 2024 election as a populist backlash against insiders by voters who feel like outsiders. Obviously, what was gross about the Epstein notes was how they cozied it and chatted up with him. Can Democrats use those to show that Trump and his tech CEO friends are real elites and untrustworthy?

48:44Kara Swisher:Because I think right now, tech people are starting to go through the real ringer in terms of their reputation, whether it was through Doge. And Musk is in the center of a lot of it, but it's all of them. Does that help or hurt as people begin to not like billionaires quite so much?

48:59Lawrence Lessig:Yeah, I think, you know, it really depends on whether there's a Democrat who can credibly articulate the other side. And the other side is not anti-populist, it's pro-populist. It's a side that says, look, you were right. We do have a system that sucks up to the elite. And look, you know, the Epstein files are just one dimension of it. You can see it everywhere. And we have got to change that corruption. But you thought Donald Trump was going to change that corruption for you. Look what happened. The guy's$4 billion richer because of that corruption, because of that elite. Those tech firms are sucking up to him and giving him everything he wants.

49:37Lawrence Lessig:Amazon pays$40 million for a documentary about his wife. that is not what you were angry about. That is not what you were fighting for. And so is there a Democrat who can credibly say to that populist base, you picked the wrong horse to fight your fight, but there is a side that would fight your fight and would implement policies that would address this kind of elite corruption. And, you know, I mean, one of the big problems though is whether that message gets out, whether that message is reached. I don't know if you remember the great television series Scandal, And there's one episode just in 2016 before Trump became Trump where there's a Trump-like character.

50:16Lawrence Lessig:There is. And he's like a big populist. And then Kerry Washington catches him on tape, like admitting that all of his face is just, you know, basically hillbillies and he hates all of them. And that leaks. And once that leaks, his support disappears. Well, that's just liberal fantasy. Yes, it is. It is. It's like dreaming that just get the facts out there.

50:38Kara Swisher:There's a Katharine Hepburn movie, Man of the People. Yeah. Back then. Exactly right. Yeah. Exactly right. Same thing.

50:42Lawrence Lessig:But, you know, we don't have that media ecosystem anymore.

50:46Kara Swisher:Well, it depends on the person because when Mitt Romney did it, it worked, right?

50:50Lawrence Lessig:It was a different – even that was a different media ecosystem.

50:53Kara Swisher:He's a different person too. Yeah, that's right. We'll be back in a minute.

51:10Kara Swisher:When you want your spring break to feel like... And your kid's pool day to feel like... And your hotel bed to feel like... Ooh, and room service to feel like... Because at Hilton, hospitality feels like...

51:28Lawrence Lessig:Your cabana's ready. Would you like fresh towels?

51:30Kara Swisher:It matters where you stay. Book now at Hilton.com. Hilton. For this day.

51:40Lawrence Lessig:Starting a business can seem like a daunting task, unless you have a partner like Shopify. They have the tools you need to start and grow your business. From designing a website, to marketing, to selling, and beyond, Shopify can help with everything you need. There's a reason millions of companies like Mattel, Heinz, and Allbirds continue to trust and use them. With Shopify on your side, turn your big business idea into... Sign up for your$1 per month trial at shopify.com slash special offer.

52:08Kara Swisher:Support for On with Kara Swisher comes from the Freedom from Religion Foundation. When the government tries to enforce religion, that's not morality, that's an attempt to control its citizens. The First Amendment exists so no one gets to hard code their beliefs into law. Not Silicon Valley, not Washington, not Christian nationalists. The Freedom from Religion Foundation is one of the few organizations actually enforcing that boundary in courts and schools and in state houses. It's about power, not piety. And when government and religion merge, power always wins. If you care about personal freedom, real equality, and keeping the state out of your conscience, you can support them.

52:44Kara Swisher:Visit ffrf.us slash newyear or text my name, Kara, to 511-511 to learn more or to join. Text Kara to 511-511 or go to ffrf.us slash newyear. That's CARA to 511-511 and help protect the country that belongs to all of us. Tax fees may apply.

53:12Kara Swisher:So let's end by talking about artificial intelligence. You've written that, quote, observing that AI could be used for good is like observing that bulldozers could be used to help build affordable public housing. It is possible, of course, but is it likely it is not? Talk a little bit about the ways to regulate it.

53:29Lawrence Lessig:Well, I mean, you know, everybody's focused on the next AI, the future AI, and like scary fears about, you know, runaway AI. If we build it, if anybody builds it, everybody dies. And I think those are important problems to focus on. But we need to recognize old AI, the AI that drives social media, is the present threat. And that present threat has turned us into people that can't even hear each other, ignorant people who hate each other. And that that will continue to be deployed and perfected as the AI's algorithms driving your media, your consumption of engagement-based media, become ever better at figuring out how to trigger you and get you to do what they want you to do, which is to spend more time focused on the device.

54:11Lawrence Lessig:The only way to fix that is to blow it up, literally blow it up. Well, figuratively, literally blow it up. And, you know, we could do it legally. So, for example, imagine Congress passed an engagement tax that basically taxed a quadratic engagement tax. So tax on the basis of engagement. So one unit, it's$1. Two units, it's$4. Three units, it's$9. At a certain point, the platform would be like, hey, Leslie, go take a walk. Like you're costing us too much money to be on that platform. My point is that's totally constitutional. And if you did it, you would blow up the business model. And they would have to figure a different way to try to make money, one that wasn't focused on constantly getting us to spend our time enraged based on what we're being fed.

54:53Lawrence Lessig:But to get something like that requires a functioning Congress.

54:57Kara Swisher:See Congress not functioning from question one. Yeah.

55:01Lawrence Lessig:We don't have a functioning Congress, right? So I think this is like the problem of the age. I'm just finishing a book where, you know, the first, the metaphor is the Titanic. And it's like, you know, you hit the iceberg and you see the ice on the deck and you're like, okay, we can fix that. But then you have the gash in the hull and it's like, doesn't matter if we fix that, we're going down. Well, the equivalent is like the democracy reform stuff I've been doing for 20 years. We came close to fixing that. We know how to fix it. We could fix all of that stuff. But this engagement-based media is the gash in the hull.

55:33Lawrence Lessig:And you can't sue them.

55:34Kara Swisher:You can't sue them. Right. So you were, let me just be clear, you were once a beloved figure within the tech world for being an open source champion and pushing back against regulation. And they don't like you so much. They don't like me anymore at all. So they don't like Yuval Harari. They don't like Sam Harris, who had been outspoken. But you've spoken out against open source AI models, too, and you're a vocal supporter of California AI safety bill. Has the reality of generative AI undone some of your original assumptions?

56:00Lawrence Lessig:Well, look, I think, you know, 1047 or the California regulations were important just to make sure that we knew what was going on inside those companies. I mean, I defended some of the whistleblowers. Daniel Cocotelo, who came out and was willing to give up two million of his own dollars in order to have the freedom to speak. That open AI. He didn't have to do that. He had open AI. and one of the purposes of that bill was to make it so whistleblowers could know and identify problems with what was going on inside those companies. That has nothing to do with open source. What I wrote in Economist about open source was open source is extremely valuable.

56:40Lawrence Lessig:I think it's become even more important, especially to assure access across the world. But I said that there's going to be a point at which the models become sufficiently powerful that we need to make sure that we can assure that they are not deployed in ways that are catastrophic to humanity. And I don't think we're there yet. We're not at that point. But it's just about a point about you can't think in binary ways about this. Like there's a risk at it. There's a certain point at which the risk becomes overwhelming, even if we're nowhere close to it now. And we have to begin to think about what do we need to make it possible to regulate in that context.

57:16Kara Swisher:You've spoken out about the AI's potential to destroy democracy. You say, as you said, we'll supercharge the media business models that rely on engagement, which leads to enragement, increase polarization, and shatters the shared reality that's necessary for democracy. And your solution has been the citizen assemblies. Talk as you're thinking, given the scale of the problem you described, citizen assemblies can sound quaint and Pollyanna's as a solution, but then you see Minneapolis. You see it. Like, you could start to see it. You believe technology could decentralize power and strengthen democracy, but the opposite is true.

57:47Kara Swisher:So talk a little bit about that.

57:49Lawrence Lessig:Well, what we know about people who've seen and experienced citizen assemblies is that they trigger in those people this kind of aha moment. Like it's the first time they're doing anything related to government or politics, and they feel like this is something powerful and different. And what it's able to do is to take people who have very different views about the world and get them to come to an understanding and propose solutions that are meaningful, real solutions. And that experience is something that when people see it or have it, they begin to recognize that the world of professional politicians is not the only world we could have.

58:29Lawrence Lessig:Indeed, one of my favorite books here is a book called Against Elections by von Reibrook. And he starts the book by saying, you know, we've had thousands of years of history of democracy, but only a couple hundred years where elections have been the sole way in which we pick our leaders. And indeed, Aristotle and Montesquieu both said if you have elections, you will tend towards aristocracy. But if you pick leaders in a random— It was the Jefferson fight with Hamilton. Yeah. You pick them in a more random—in a random representative way, then you'll tend towards democracy. And citizen assemblies, if done right, random representative groups of people who It's a jury you're talking about.

59:09Lawrence Lessig:It's a big jury. It's a statistically significant jury. Given information, given a chance to deliberate, can produce solutions that our government can't. I mean, sometimes I think we should just have, call it the government games, where we impanel a series of citizen assemblies to address the problems Congress is supposed to address, and we give them two years. And at the end of two years, we say, which of these two institutions actually came up with real solutions to these problems? And I guarantee you, I would bet.

59:37Kara Swisher:You have to pay them a lot, right? Give them for their time, right?

59:40Lawrence Lessig:Turns out, I mean, maybe you do, but, you know, turns out the ones that have succeeded, you don't have to pay them a terribly large amount. I'm a strong believer that we've got to support them to make sure everybody can participate and they don't lose anything from participating, not like jury pay, but like real pay. But regardless, whatever we have to pay them, if you could begin to address problems like climate change or inequality or tax policy or whatever, that would be worth it. And these bodies, surprisingly, turn out to be able to do much more, much more effectively than ordinary government.

1:00:14Lawrence Lessig:I mean, it feels like a kind of Rocky moment when, you know, Rocky, like, surprises the world that he can at least stay in the ring with Apollo Creed. And in Rocky II, he's able to defeat Apollo Creed. And we are rocky in this story. Like a random representative body of citizens sitting down and addressing COVID policy or addressing climate change policy turn out to be more effective at getting real solutions. Have you seen an inflection point? Yeah. So this is happening everywhere around the world and increasingly in the United States. I mean, I don't want to oversell the possibility. It's not something that in the next year or next five years is going to be present enough so people can imagine it or see it.

1:00:56Lawrence Lessig:You know, many people, you know, polling, they'll say, yeah, I would think a random group of Americans would be better than Congress. And maybe they believe that. But I think people can be easily frightened by the idea of random representatives because when they think of any random, it's like that guy. And of course, there will be idiots, but they'll only be 5 % idiots. Like 95 % will be like decent, normal people, 10 % idiots, whatever. But the point is like we need to demonstrate it. And if we demonstrated it more and more and more and more and more people began to see this can actually solve the problem that government can't, I think you're going to see more power being given to them to at least constrain or put guardrails on what our government can do.

1:01:37Kara Swisher:Yeah, you see people reacting to it. So my last question, if we don't meaningfully rein in these super PACs, getting back to your first part, we were talking about strengthen voting rights, address the national populist backlash against elites and regulate AI. What happens to American democracy? What does it look like 10 years, 20 years if we keep heading down the path? And what could it look like?

1:01:59Lawrence Lessig:Yeah, I mean, I think, you know, people thought America's empire or America as an ideal would never end. I think if we don't fix these problems, it ends. I think, you know, it's ugly. I mean, how does it end? Like, was there a division? Is it, like, who do we become? But I think that the world that we imagine ourselves contributing to, like the values that I think we imagined standing for, have begun to collapse. And we don't have a mechanism to pull it back together if we don't solve these core corruptions. Now, I think we should be simple about it. Let's start with the money. Like that is the core.

1:02:41Lawrence Lessig:That is the foundational. For every thousand hacking at the branches of evil, there's one striking at the root. This is the root. And if you don't find a way to address this, none of the other changes, voting rights, none of those things are going to matter. But if we solve this problem, if we can take down the super PACs and at least open up the opportunity for other influences to matter, then we have something to fight for. Whether you think we'll succeed or not, I think you should fight for it. And I understand the argument that there's no hope, there's no reason to be fighting because we can't succeed.

1:03:12Lawrence Lessig:But I don't think you're allowed to take that position. If you love your country, like if you love your child, you will do anything you can regardless of the odds. And that's what we should be doing right now. Whatever it takes, we've got to find a way to restore or establish a democracy that speaks for the people, not for the tiniest fraction of the 1 % who can buy elections or can corrupt the system so that it responds to them, whether through threats or through incentive.

1:03:39Kara Swisher:Yeah. Something I always say to people when they say we can't do anything, I said, they're so poor, all they have is money. Like, you don't understand. I'm telling you. They're beatable. Please borrow it and put it around. Anyway, Larry, as usual, what a fascinating discussion, and we really appreciate it. Thank you so much. Okay. Thanks.

1:03:59Kara Swisher:Today's show was produced by Christian Castor-Russell, Michelle Eloy, Megan Burney, and Kaylin Lynch. Nishat Kerwa is Vox Media's executive producer of podcasts. Special thanks to Eamon Whalen. Our engineers are Fernando Arruda and Rick Kwan, and our theme music is by Trackademics. If you're already following the show, the Roberts Court will stick to its originalist principles. If not, hello, unlimited dark money forever. Go wherever you listen to podcasts, search for On with Kara Swisher, and hit follow. Thanks for listening to On with Kara Swisher from Podium Media, New York Magazine, the Vox Media Podcast Network, and us.

1:04:35Kara Swisher:We'll be back on Monday with more.

1:04:44Lawrence Lessig:30 years ago, Blinds.com broke the mold and made custom window treatments easy for everyone. Over 25 million windows later, we're celebrating by giving our customers up to 50 % off site-wide during our anniversary sale. Whether you DIY it or want a pro to handle everything from measure to install, Blinds.com has you covered. Shop online, access real design professionals, and get free samples. Thank you for 30 amazing years. Shop the anniversary sale now through March 11th and get up to 50 % off site-wide at Blinds.com.