Episode 3: A Different (Kind of Control of) Congress

Season One, Episode 3 | October 24, 2018
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Transcript & Attribution

The single most unrecognized fact in American politics today is not how divided we are, but how united we are.

This is Larry Lessig and this is the third episode of this podcast, Another Way.

In the first, I described what everyone knows: that America has become ungovernable and that 2020 won’t fix that unless we change what that election is about.

In the second, I explained why the ways we’ve fixed things in the past just won’t work this time around. The insiders can’t do it. Or they won’t do it unless we force them, so what we need is a different way of forcing constitutional politics — one that puts the outsiders, the citizens, up front.

That strategy has two parts — one involving Congress, the other involving the President. This episode is about Congress — and the weird, special feature of our Constitution that might be a hook for this strategy of reform.


Part 3

In the middle of 2016, the University of Maryland’s Program for Public Consultation conducted a massive survey to measure America’s satisfaction with their government.

Surprise! Surprise! Not many Americans were very satisfied. Much more surprising was this: the reasons that Americans gave for their dissatisfaction were almost universally the same — regardless of age or sex or geography or, most amazingly, political party.

92% of Americans believed that “the government is pretty much run by a few big interests looking out for themselves” — 95% of Republicans, 89% of Democrats.

85% of Americans believed that “Congress does not serve the common good” — 87% of Republicans and 84% of Democrats.

89% of Americans believed that “corporations and their lobbyists have too much influence” — 89% of Republicans, 90% of Democrats.

The same percentage (89%) believed that “elected officials think more about the interests of their campaign donors than the common good of the people” — 92% of Republicans, 88% of Democrats.

Do big campaign donors have too much influence? Yes, said 91% of Americans — 90% of Republicans and 91% of Democrats. Is there “too much money flowing into campaigns?” Yes, said 88% of Americans — 87% of Republicans and 91% of Democrats.

It may well be, as common wisdom tells us, that “divisions between Republicans and Democrats on fundamental political values” are as high as they have ever been. Yet on the fundamental value of our democracy we are as united as we have ever been.

Now the experts and the political consultants will discount the significance of this consensus. Yes, the people hate the system, they tell us. Yes, they say they want to fix it but the people don’t actually vote on the basis of what they say, or so the experts tell us. The people vote, the experts insist, on the issues that divide us — like health care, aid to the poor, or environmental regulation. Unity is irrelevant on these issues, the relevant bits are the differences.

No doubt, the data seem to support the experts. Though politicians raise the flag of reform often, reform rarely seems to excite the voters. It certainly doesn’t seem to decide elections. Like the love for vegetables or exercise, reform is what we say we support but rarely do we act upon it.

Yet I think these data are importantly ambiguous.

Because here’s the fundamental fact about us: the vast majority of us don’t believe that there’s actually anything that can be done to fix our corrupted government. We all agree there’s a problem but we all believe that, like death and taxes, there’s just nothing we can do about that problem.

That fact, in my view, explains our passivity. In 2013, a poll conducted by Fund for the Republic found 96% of Americans thought it important to reduce the influence of money in politics but 91% thought it was not possible.

This is not the politics of apathy. This is the politics of resignation. It isn’t the story of a people coming to like how things are or a people too lazy to do anything about it. It is the tragedy of a people believing that there is nothing that can be done about it. It is the tragedy of a people resigned to failure, not a people who have embraced failure as their own.

Thus the fact that reform doesn’t pay the politicians just is not surprising if the people don’t actually believe that reform by the politicians is possible. Most people would love it if friendly unicorns roamed the streets, but few of us insist that candidates for Congress promise to get us roving unicorns. We know what we want; we also know what we can get.

Yet if reform were thought possible, then all bets would be off. If a strategy of reform or a reform candidate seemed plausible and believable, then how the voters would react is not something that we can predict from how they have reacted when reform was thought like unicorns. Believable reform would give the resigned a reason to rethink their resignation, just as the Arab Spring gave the democracy-starved citizens of the Middle East a reason to rethink their own acceptance of authoritarianism — tragically, for them, as it turned out.

So if I’m right, the critical question becomes just this: what could make reform possible and believable? What is a strategy that could actually break the lock the status quo has, and make real change — “change that will make a lasting difference in the lives of ordinary Americans” — believable and feasible? And how could that strategy be made so believable that the resigned revolutionaries we like to call “Americans” might again step up and exercise the “unalienable right” that Jefferson promised us we had to “alter” (let’s leave aside “abolish”) our government?


The key to our troubles is Congress. The key to our salvation is to fix Congress.

More precisely, the key to our salvation is to capture the control of Congress and force the politicians within Congress to enact the changes that America needs.

And the Far Right has shown us just how.

Because to control Congress, it’s not actually necessary to elect a majority of Congress. What’s necessary is to elect a caucus that is big enough to control the control of Congress.

That’s what the Freedom Caucus in the current House of Representatives has done. The thirty-some members of that right wing, some say libertarian faction, hold enough votes to determine the difference between a majority in Congress and not. And if the caucus votes as a block, it is likely to decide the result in the House. That fact gives it enormous power in setting the agenda of the Republicans in the House — to the great consternation of most Republicans in the House and Senate, and maybe America generally.

Yet the Freedom Caucus exercises its power against the values of the vast majority of Americans. While an important subset of America is on the far extreme of the Republican party, that subset is a subset of a minority. The Freedom Caucus sometimes seems to forget this undeniable fact — as when its leaders seemed surprised, even miffed, that America didn’t rally to its demand to repeal Obamacare. What’s not to like in throwing 20 million people off of health insurance? But the certain fact about this faction in Congress is that when it succeeds in blocking legislation, it is leveraging power, not democratic principle. The Caucus could never defend its positions to the vast majority of America. Most Americans would just be repulsed.

But imagine now a Reform Caucus, large enough to determine the majority in the House, mixed between Republicans and Democrats, and committed to passing fundamental reform. Members of that caucus would pledge to support a single plan: to elect a Reform Speaker, by caucusing with whatever party would endorse their plan. And then, with that Speaker, the Reform Caucus would drive Congress to adopt a package of reforms that would change the institution of Congress. Once that plan was enacted, the Caucus would dissolve; the members would return to their party; the Reform Speaker would probably go home.

Bracket for a second what those reforms should be, I’ll get to that in the next episode. The point right now is not to argue about the particulars but to get a recognition about the potential for progress. The challenge now is to overcome resignation, so focus now on the process and how it could actually work.

For this strategy turns upon a very weird fact about the Speaker of the House. The Constitution doesn’t actually describe the qualifications for the Speaker. That means that the Speaker could literally be anyone, from Tom Hanks to the Prince of Wales, he or she doesn’t even have to be an elected member of the House. The only requirement is that a majority in Congress vote to elect the Speaker as Speaker. Nothing in the Constitution restricts that vote, so nothing can restrict how Congress can vote. The Reform Caucus could thus partner with a party to elect a Speaker who could galvanize the reform movement. The Speaker and the Caucus could thus force reform onto the nation’s agenda.

Yet unlike the Freedom Caucus, this Reform Caucus could actually claim to represent America. Its values for reform at least would be the values that the vast majority of America endorse. Unlike the Freedom Caucus, it could thus easily stand before the American people and justify its power. It could say what the Freedom Caucus cannot say: “We are forcing a reluctant institution to do what we know America wants it to do.”

So then, how could a Reform Caucus be elected?

Okay, so the key here is safe seats, not swing seats. The movement supporting the Reform Caucus would recruit its members from districts across America where the party in control is not in question. Any fight to elect a representative would thus be a Primary fight, not a fight to flip the seat from one party to the other. The ultimate ask of the voter is not to defect, or to betray your tribe, but instead to affirm what we already know: practically all Americans believe in reform. The Caucus would build its membership in Primary fights across America, with candidates who enter politics either for the purpose of making reform happen or to identify themselves as reform candidates committed to supporting the plan of the Caucus.

This fight, of course, would take real money. Yet that money would not be devoted to the impossible task of convincing Americans to betray their own tribe, it would instead be devoted to convincing Americans that change was possible. The fight would leverage existing values of a diverse public to an idea that, once understood, could be compelling.

That fight no doubt would take a leader — presumptively the person who would become the Speaker. That leader would rally the resources necessary to win these 50 seats. She or he would become the voice of a strategy that, over time, Americans could be brought to see and understand and support. With less than $1 billion the Reform Speaker could build a controlling caucus committed to reform. In a critical sense, with less than $1 billion she or he could reclaim America’s democracy.

Thus the Reform Speaker is critical to the plan to reclaim our Republic, yet a Reform Speaker is not enough. To claim the moral authority for fundamental reform, and not just the political power, the Reform Caucus would need more than a controlling faction in the House. It would need the values of that faction actually ratified by the nation.

And to do that would require a President. Reform needs a national leader elected overwhelmingly by a national public that affirms through its vote that it demands reform. That President would raise the debate to the national stage. He or she would give every American the chance to channel his or her frustration with the existing system to the end of fundamental change: not the fight of Left versus Right, but a fight of us versus them.

That fight would require something different as well — though this time, that difference has an important historical precedent, and that’s the subject of Episode 4.

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