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Lawrence Lessig

  • Crowd of people in front of the U.S. Capitol

    Is democracy in peril?

    September 23, 2021

    The state of American democracy will be examined in a lecture series, "Democracy," which had its first session this week and will continue through the fall and spring.

  • Chuck Schumer Rejects Joe Manchin’s Voting Rights Strategy

    May 20, 2021

    Chuck Schumer and Joe Manchin are locked in a voting rights standoff. Senate Majority Leader Schumer, D-N.Y., shot down an effort from Sens. Manchin, D-W.Va., and Lisa Murkowski, R-Alaska, to focus narrowly on reauthorizing the 1965 Voting Rights Act, instead championing the For the People Act as the more immediate fix for systemic problems in the U.S. electoral system...Democracy reform advocates say using this moment only to pass the John Lewis Voting Rights Act would squander an opportunity...Worse yet, said Lawrence Lessig, a professor at Harvard Law School, a dangerous possibility could be that Manchin actually does manage to get Republicans to cynically co-sponsor his approach. “The reason you see Republicans supporting HR4 is that they believe that this bill will be passed by Congress and kill HR1 but then be struck down by the Supreme Court and lead us back to where we are right now,” said Lessig, author of “They Don’t Represent Us: Reclaiming Our Democracy.” “The reality is, bipartisanship is not possible with the Republican leadership on voting rights reform because they are convinced the only way they maintain power is by preserving the ability of the states to make it harder for Democrats to vote.”

  • Was media always so polarized?

    March 29, 2021

    Lawrence Lessig, Sue Gardner and others explain how and why American broadcast news became increasingly polarized.

  • This is no time to compromise on democracy reform

    March 23, 2021

    An op-ed by Lawrence LessigH.R. 1 is poised to be the most important democracy reform enacted by Congress since the Voting Rights Act of 1965. But in the wake of its passage in the House on a strict party-line vote on March 3, some anxious scholars and pundits worry it cannot pass the Senate and are urging Democrats to pull back. That advice is wholly misguided, both politically and morally. This is not the time to compromise on H.R. 1. It is not time for Democrats to negotiate against themselves. This is the time to make the argument for every facet of H.R. 1 even more strongly. H.R. 1 is an omnibus reform package that covers a wide range of flaws in our current representative democracy. Building on the work of the late representative John Lewis, the bill would assure that every qualified voter had equal freedom to vote, and that no state could deploy complex rules to suppress anyone’s right to participate. It would end the partisan gerrymandering of congressional districts, increase election security and, for the first time in U.S. history, give candidates for Congress a real opportunity to rely on small contributors alone to fund their campaigns. The bill would also impose substantial ethics regulations on Congress, the Supreme Court and the president. And it would be funded by fines, penalties and settlements from corporate tax, lobbying and financial fraud cases.

  • The Internet Doesn’t Have to Be Awful

    March 9, 2021

    To read the diary of Gustave de Beaumont, the traveling companion of Alexis de Tocqueville, is to understand just how primitive the American wilderness once seemed to visiting Frenchmen...If Tocqueville were to visit cyberspace, it would be as if he had arrived in pre-1776 America and found a people who were essentially powerless. We know alternatives are possible, because we used to have them. Before private commercial platforms definitively took over, online public-interest projects briefly flourished. Some of the fruits of that moment live on. In 2002, the Harvard Law professor Lawrence Lessig helped create the Creative Commons license, allowing programmers to make their inventions available to anyone online; Wikipedia—which for all the mockery once directed its way has emerged as a widely used and mostly unbiased source of information—still operates under one...All of that began to change with the mass-market arrival of smartphones and a shift in the tactics of the major platforms. What the Harvard Law professor Jonathan Zittrain calls the “generative” model of the internet—an open system in which anyone could introduce unexpected innovations—gave way to a model that was controlled, top-down, and homogeneous. The experience of using the internet shifted from active to passive; after Facebook introduced its News Feed, for example, users no longer simply searched the site but were provided a constant stream of information, tailored to what the algorithm thought they wanted to read.

  • An obscure Alaska court case could end super PACs and reshape our democracy

    February 16, 2021

    On January 20, while the country was focused on the presidential inauguration, the Alaska Supreme Court heard arguments in a case that could upend the big money systems that have come to fund the nation's elections. It's time for the rest of the country to pay attention. The case comes from Lawrence Lessig, a law professor at Harvard and founder of the organization EqualCitizens, who spent Inauguration Day on Zoom arguing against super PACs...Lessig's case asks the Alaska court — and potentially the US Supreme Court — to recognize a different type of corruption. His argument relies on originalism, an interpretive technique that examines how ordinary people would have understood the Constitution back when it was first proposed. In support of his originalist argument, Lessig marshals impressive evidence that the framers' generation had a deep and capacious understanding of political corruption. People back then understood bribery, of course. But they also worried about institutional corruption: even if a particular individual isn't taking bribes, an institution as a whole can become corrupted by an improper dependence on anything other than the support of voters. And super PACs corrupt the system by making politicians far too dependent on a small number of super-wealthy donors.

  • Trump’s legal team prepares for Senate impeachment trial as Schumer agrees to delay

    January 25, 2021

    Senate Majority Leader Chuck Schumer has agreed to delay former President Trump's impeachment trial by two weeks. The House still plans to submit the article of impeachment on Monday, prompting the proceedings to begin. Harvard Law professor Lawrence Lessig joined CBSN to explain what the former president's legal team may be doing to prepare for the trial and what Democrats need to do to prove the president intended to start an insurrection.

  • Have Trump’s Lies Wrecked Free Speech?

    January 6, 2021

    In the closing days of his presidency, Donald Trump has demonstrated that he can make innumerable false claims and assertions that millions of Republican voters will believe and more than 150 Republican members of the House and Senate will embrace ... In the academic legal community, there are two competing schools of thought concerning how to go about restraining the proliferation of flagrant misstatements of fact in political speech ... Rebecca Tushnet, a law professor at Harvard, wrote by email: “Those are some big questions and I don’t think they have yes-or-no answers. These are not new arguments but they have new forms, and changes in both economic organization and technology make certain arguments more or differently salient than they used to be.” ... Lawrence Lessig, a law professor at Harvard...wrote by email, that “the First Amendment should be changed — not in the sense that the values the First Amendment protects should be changed, but the way in which it protects them needs to be translated in light of these new technologies/business models.” ... Randall Kennedy, who is also a law professor at Harvard, made the case in an email that new internet technologies demand major reform of the scope and interpretation of the First Amendment and he, too, argued that the need for change outweighs risks: “Is that dangerous? Yes. But stasis is dangerous too. There is no safe harbor from danger.” ... In one of the sharpest critiques I gathered, Laurence H. Tribe, emeritus professor at Harvard Law School, wrote in an email that, “We are witnessing a reissue, if not a simple rerun, of an old movie. With each new technology, from mass printing to radio and then television, from film to broadcast TV to cable and then the internet, commentators lamented that the freedoms of speech, press, and assembly enshrined in a document ratified in 1791 were ill-adapted to the brave new world and required retooling in light of changed circumstances surrounding modes of communication.”

  • Molly Brady wearing a bright red jacket sits in front of a computer and teaches her class in Zoom

    2020 in pictures

    January 5, 2021

    A look back at the year at HLS.

  • The Outdated Law that Republicans Could Use to Upend the Electoral College Vote Next Time

    January 4, 2021

    On Monday, amid heightened security measures spurred by threats of violence, the electors of the Electoral College cast their votes to affirm that Joe Biden will become the forty-sixth President of the United States. That vote is a ritual typically of interest only to the electors and their friends and families, but this year the major wire services moved news bulletins as the states tallied their counts. It was one more case of how Donald Trump’s denialism about his electoral defeat, and his continuing attempts to retain power by conjuring a constitutional crisis, have brought Americans into anxious acquaintance with the anachronistic mechanisms of a democracy that they can no longer take for granted...If Democrats were to win control of both the House and the Senate, following next month’s runoff Senate elections in Georgia, “It would be super-wise to rewrite the E.C.A.,” Lawrence Lessig, a law professor at Harvard and a democratic-reform activist, told me. “We need to clear up what exceptional cases there are” that could ever allow state legislatures to intervene on the basis of a “failed election,” how such a determination would be made, and how judgments by legislatures would be subject to review by other political authorities and courts. There are other provisions of the E.C.A. that bear rewriting, too, Lessig said, such as a complicated tie-breaking procedure if disputed slates of electors are sent to Congress.

  • Alternative slates are voting: What this means

    December 15, 2020

    An article by Lawrence LessigAs reported by Rick Hasen at the Election Law Blog, Stephen Miller has now announced that alternative slates of electors are in fact voting in each of the swing states. Rick discounts the significance of this. I think he moves too quickly in reaching that happy conclusion. The precedent is Hawaii, 1960. As Van Jones and I had written on CNN.comon November 4, “In 1960, Hawaii’s vote was incredibly close. On the first count, Nixon had beaten John F. Kennedy by 141 votes. On November 28, the acting governorcertified a Republican slate of electors. They met on December 19 and cast their ballots for Nixon. But a recount showed that, in fact, Kennedy had won the popular vote by an even closer margin of 115 votes. That recount had been completed on December 30, 11 days after the Republican electors from Hawaii had cast their votes for Nixon. Five days later, the governor sent Congress a new certification of electors, this time naming the Democratic electors as the electors properly chosen by Hawaii’s voters. That certification arrived in Congress on January 6, the day that Congress was to count the electoral votes. When then-Vice President Nixon, who the Constitution had set as the custodian of the electoral votes, began to ‘open all the certificates’ as the Constitution directs him, and came to Hawaii in the list of states, he announced that there were two slates of electors from Hawaii, one Republican and one Democratic.” As with what Miller imagines with the swing states in 2020, Hawaii had two certifications. The question for Nixon was whether he would count that second certification, given after the electors were to have voted (especially since they were electoral votes for Kennedy, not for Nixon).

  • Missouri, 5 more states ask to join Texas Supreme Court election case against Georgia, others

    December 11, 2020

    Missouri and five other states on Thursday threw their support even further behind the Texas lawsuit aiming to prevent Georgia, Pennsylvania, Michigan and Wisconsin's electors from casting their electoral votes by asking the Supreme Court to let them join the Texas suit. Missouri on Wednesday led a group of 17 states in filing a brief that supported the Texas lawsuit, which alleges that the four key swing states that voted for President-elect Joe Biden violated the Constitution by having their judicial and executive branches make changes to their presidential elections rather than their legislatures...Despite the backing of so many state attorneys general, most legal experts say the Texas suit is fatally flawed in several ways and nearly certain to fail. "This is political posturing through litigation. Not one of those attorneys general believes they are entitled to win," Harvard Law professor Lawrence Lessig told Fox News. Lessig is a former clerk for the late Justice Antonin Scalia and currently works with Equal Votes, a nonprofit that seeks to end winner-take-all allocation of electoral votes in states. Lessig continued: "As lawyers, that should stop them from signing onto such an action. But they are acting as politicians, not lawyers here – to the detriment of the rule of law."

  • The Last Long-Shot Chance For Trump Allies To Challenge Election Results

    December 10, 2020

    President Trump’s campaign and his allies’ litany of legal challenges to the 2020 presidential election have not succeeded in changing the results of the election. But two weeks before inauguration, Republican lawmakers who have yet to acknowledge President-elect Joe Biden’s victory will have one last long-shot chance to challenge the outcome showing Mr. Biden won 306 electoral votes to Mr. Trump’s 232...Claiming widespread irregularities in the race between President George W. Bush and Democratic opponent John Kerry, a group of lawmakers objected to Ohio’s 20 crucial electoral votes, potentially putting the election in the balance. Kerry himself did not support the effort. “While I am deeply concerned about the issues being highlighted by my colleagues in Congress and citizens across the country and support their efforts to highlight the need to ensure voting rights,” Mr. Kerry said, the New York Times reported at the time, “I will not be joining the protest of the Ohio electors.” President Trump tweeted support for Brooks after his announcement that he would challenge battleground states’ electoral votes. The statute allowing objection, outlined in the Electoral Count Act, exists because of another contested election, explained Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at Harvard Law School. In the 1876 presidential election, three states submitted competing slates of electors, with each candidate “claiming victory in violent and confused elections,” according to the U.S. House Archives.

  • Boston Public Radio Full Show: 12/3/20

    December 4, 2020

    Today on Boston Public Radio: Lawrence Lessig discussed the legal window for Republicans to replace electors in a last-ditch effort to get President Trump reelected, and other extrajudicial efforts to overturn the results of the 2020 election. Lessig is the Roy L. Furman professor of law and leadership at Harvard Law School, and the founder of Equal Citizens. His latest book is “They Don’t Represent Us: Reclaiming Our Democracy.”

  • The Electoral College: Keep or Replace? A Soho Forum Debate

    November 23, 2020

    When Donald Trump won the presidential election in 2016 even though 2.8 million more people voted for Hillary Clinton, everyone from Bill De Blasio, to Michael Moore, to Eric Holder and Bill Maher said that at long last we should abolish the electoral college. Then-California Senator Barbara Boxer introduced a bill to amend the U.S. constitution to do just that. A Gallup poll from September of this year showed that 61 percent of Americans support abolishing the electoral college in favor of a national popular vote, although it's an issue that breaks along partisan lines. 77 percent of Republicans want to keep the electoral college, while 89 percent of Democrats said that we should get rid of it. Is the electoral college the best system for electing a president? That was the subject of an online Soho Forum debate held on Wednesday, November 11, 2020. Richard Epstein, a law professor at New York University, defended the system against Lawrence Lessig, a law professor at Harvard. Soho Forum director Gene Epstein moderated. Lessig won the Oxford-Style debate by gaining 14.29 percent of the audience's support. Epstein lost 2.04 percent of his pre-debate votes.

  • Sound On: Trump Election Strategy, Biden Transition (Podcast)

    November 23, 2020

    Bloomberg Chief Washington Correspondent Kevin Cirilli delivers insight and analysis on the latest headlines from the White House and Capitol Hill, including conversations with influential lawmakers and key figures in politics and policy. Bloomberg's June Grasso served as guest host. She was joined by Lawrence Lessig, Professor of Law and Leadership at Harvard Law School and founder of Equal Citizens, Jennifer Rie, Bloomberg Intelligence Senior Antitrust Litigation Analyst, John Sitilides, Geopolitical strategist at Trilogy Advisors and diplomacy consultant to the State Dept, and Kevin Walling, Democratic Strategist at HG Creative media.

  • State legislatures do not have the power to veto the people’s choice in an election

    November 20, 2020

    An op-ed by Lawrence LessigThe conservative radio talk show host Mark Levin has tweeted an all caps call for state legislatures to “get ready to do your constitutional duty.” Levin believes they have “the final say” on which slate of presidential electors gets to vote in the Electoral College. Under this theory, even if more people in a state voted for Democrat Joe Biden, their legislature would still have the power to pick a slate of Donald Trump electors. In other words, the Republican legislatures in Arizona, Georgia, Michigan, Pennsylvania and Wisconsin could all now select a slate of electors for Trump. Needless to say, Levin’s theory has been embraced by many who continue to believe it can give Trump a second term. Levin is wrong about the power of state legislatures. But he’s not making his theory up out of whole cloth. There’s a kernel of truth to Levin’s theory. And it’s important to understand why that truth does not mean that legislatures have the power to do something that no legislature has ever done  —  to veto the results of a popular election and pick a slate of electors for the loser in that popular election. Levin grounds his claim on the part of the Constitution that gives legislatures the power to select the “manner” by which presidential electors are appointed. In Bush v. Gore, the Supreme Court interpreted that power to mean that the legislature could vest the selection of electors in the people — through a popular election — but that it could “take back” that power “at any time.” On Levin’s reading, “at any time” includes after an election. So that after an election, the legislature could say, “Thanks for your input, but we’re going a different way.”

  • Zoom meeting with five HLS faculty

    Election 2020 debrief: What happened and what’s next?

    November 5, 2020

    In an “Election 2020 Debrief” event, a panel of Harvard Law School professors agree that the essential divisions of the American electorate remain unresolved, but find cause for some highly cautious optimism.

  • Why Pennsylvania should take its time counting votes

    November 5, 2020

    An op-ed by Van Jones and Lawrence LessigElection night is over, but the election is not. And given the unexpectedly tight race, Pennsylvania's 20 electoral votes may be those that decide who wins the White House. To be sure, Biden still has a path to victory that doesn't involve Pennsylvania, but he could end up needing the state if he suffers reverses elsewhere. The key for Pennsylvania to have an orderly and complete vote count is for the state to take its time. And the key precedent that should show Pennsylvania that it may take its time is not Florida in 2000, but Hawaii in 1960. Even though Richard Nixon said it should not be a precedent, what he did in 1960 should be the model for this election in 2020. In 1960, Hawaii's vote was incredibly close. On the first count, Nixon had beaten John F. Kennedy by 141 votes.On November 28, the acting governor certified a Republican slate of electors. They met on December 19 and cast their ballots for Nixon. But a recount showed that, in fact, Kennedy had won the popular vote by an even closer margin of 115 votes. That recount had been completed on December 30, 11 days after the Republican electors from Hawaii had cast their votes for Nixon. Five days later, the governor sent Congress a new certification of electors, this time naming the Democratic electors as the electors properly chosen by Hawaii's voters. That certification arrived in Congress on January 6, the day that Congress was to count the electoral votes. When then Vice President Nixon, who the Constitution had set as the custodian of the electoral votes, began to "open all the certificates" as the Constitution directs him, and came to Hawaii in the list of states, he announced that there were two slates of electors from Hawaii, one Republican and one Democratic.

  • photo illustration Larry Lessig and tally marks

    How It All Adds Up

    October 26, 2020

    Lawrence Lessig discusses institutional threats to representative democracy.

  • These Are The Nightmare Scenarios For The 2020 Election

    October 14, 2020

    The 2020 presidential election could be so tight, and the result so hotly contested, that the losing party refuses to concede, triggering a chaotic free-for-all in which Congress, the courts, and, in the most extreme case, the military could determine the winner. It may sound far-fetched, but the Constitution has major gaps when it comes to deciding a contested presidential race...Now let’s take the alternative scenario from above, where the Florida legislature replaces the pro-Biden slate of electors with a pro-Trump slate. Congress oversees counting the Electoral College votes. Both slates of electors from Florida — those ready to vote for Biden, and those for Trump — would surely show up in Washington claiming to represent the true will of the people. Who chooses which set of votes to count? Some say it would be Vice President Mike Pence in his capacity as president of the Senate. But most experts agree that decision falls to Congress. What happens if a split Congress can’t agree on which votes to count? The Constitution has no answer. In a true nightmare scenario, Pelosi declares the electors invalid, refuses to count the votes, and claims, in the scenario laid out above, that the House has the power to declare Biden the winner. Then, Senate Republicans rally behind Trump while Pelosi and the Supreme Court face off over who has authority. “If it’s a contest between Nancy Pelosi and the Supreme Court, we have no idea,” said Lawrence Lessig, a professor of law and leadership at Harvard Law School. “At some point, it’s the military’s judgment — because if Trump refuses to leave, who’s going to show up at the White House on Inauguration Day and escort him out?” ...Lessig said he believes the courts would ultimately get involved to avoid the appearance of a stolen election. “These are people who think about history. That’s what their whole lives are about,” he said. Still, at a time when norms are being shattered and the president is openly talking about neutering the United States Postal Service’s ability to count millions of mail-in ballots, Lessig says unimaginable scenarios have become very imaginable. “The question is not what’s reasonable or fair,” he said. “The question is what’s possible.”