Lawrence Lessig:

I feel that we need a kind of Churchillian response here. We will fight them on the beaches. We will never surrender, and we don’t have institutions right now where we have leaders who are going to say, “Hell no, we are never going to surrender. I don’t care what it costs.” And I feel like we have so few inside of our powerful institutions right now who are not willing to draw that line.

Katy Glenn Bass:

Welcome to Lawyering Without Law, a new podcast by the Knight First Amendment Institute where we explore the unique, and important role that lawyers, and the legal profession play in defending democracy, or facilitating a country’s slide into authoritarianism. I’m Katy Glenn Bass, the research director at the Night First Amendment Institute, and you just heard a clip of a conversation with our second guest, Lawrence Lessig, who we’ll introduce in just a minute. Joining me, and co-hosting this podcast is Professor Madhav Khosla the BR Ambedka Professor of Indian Constitutional Law, and Professor of Political Science at Columbia University. He is also the Knight Institute senior visiting research scholar. Hi, Madhav.

Madhav Khosla:

Hi, Katy. Great to be here.

Katy Glenn Bass:

And with us today, we are very lucky to have Lawrence Lessig, the Roy L. Furman professor of law, and leadership at Harvard Law School to talk about the role of the legal profession in a democratic society. Professor Lessig’s long, and varied career has included work on constitutional law, the internet, and intellectual property, and institutional corruption. He’s published over a dozen books, and for nearly two decades, he has been a leading voice in movements to reform democratic systems, and strengthen institutional accountability. Larry, welcome to Lawyering Without Law. Thank you so much for joining us.

Lawrence Lessig:

Thank you for having me.

Katy Glenn Bass:

It’s a real pleasure. So, I’m going to start us off. You have written extensively about institutional corruption, including in your book, America Compromise, which was published in 2018. So, can you tell us what you mean by institutional corruption, and why it’s such a problem today?

Lawrence Lessig:

Well, I think we have a default understanding of corruption, which is basically illegal corruption, the kind of corruption of taking a bribe, or buying off some government official. And I think that too often we think that that’s the only relevant kind of corruption. And my view is that’s actually the least significant kind of corruption. A much more significant kind of corruption is when we have influences, and in my view, it’s primarily economic influences that guide an institution away from what its underlying purpose is to be. And I think the one we all see is Congress. If you have a Congress filled with people who have spent 30 to 70% of their time raising money so that they can become members of Congress, they’re obviously not raising money from the average American. They’re raising money from the tiniest fraction of the 1%. And so they become extremely sensitive, and responsive to that tiny fraction of the 1%.

Now, our democracy, or our republic was meant to be a representative democracy where members of Congress were to be quote “dependent on the people alone,” as Madison put it. And by the people Madison said in Federalist 57, he meant quote, “not the rich, or than the poor.” But what we’ve allowed to emerge is a dependence on the rich more than the poor because you don’t get to Congress unless you first please the rich. So, in that sense, it’s a institutional corruption. Even if no member of Congress took bribes, still you should say that the institution is corrupt because the dependencies that have developed inside that institution are deeply corrupting from the representative ideals of Congress.

Madhav Khosla:

Professor Lessig, one of the interesting things about the professions is that they each have their sort of internal normativity, and their internal purpose. And so what it means to be a good lawyer is different from what it means to be a good teacher, and a good doctor. And given your focus on institutional corruption as something better understood as structural misalignment, let’s say, rather than illegality, do you think the legal profession meets that definition, or comes close to it at least given how concentrated access to good lawyering actually is?

Lawrence Lessig:

Yeah, that’s a great point. I mean, I do think that it’s first important on the good side to recognize that the legal profession has been pretty aggressive in disciplining its members across its history when they violate some pretty fundamental norms. So, for example, you’ll see all the time that President Trump will say things that his lawyers will not say in court because his lawyers are constrained, they could lose their license in a way that obviously Donald Trump has no license to lose. But I do think that increasingly we’re seeing in the context of especially commercial practice in America, this misalignment. I actually had a personal experience with this when I just came to Stanford, I was asked by a friend to become of counsel to a very prominent law firm. I said, “Your clients all hate me.” And he said, “It doesn’t matter. We’ll take care of that. Don’t worry.” So, I went to work for them, and the very first week one of the biggest clients said, “It’s either Lessig, or us, you need to decide.”

And so they brought me in, and I said, “I told you your clients hate me. This was the point of why I didn’t think this would work.” And they said, “Well, the client is okay if you publish your articles in the Stanford Law Review, or in the University of Chicago law. They just don’t want you to publish in Time Magazine, or Newsweek", back in the day before there was any real internet stuff. And I said, “I can’t make that promise to you. I’m going to publish wherever I’m going to publish.” And then he said, and this is the chilling part, he said, “Well, you’re violating your ethical obligation.” And I said, “What do you mean?” And he said, “Well, you have an ethical obligation to advance the business interests of our clients.” And I said, “No, actually my ethical obligation is to me believing I’m saying the truth, and I have no ethical obligation to your business interest. And so I don’t think I can work here anymore.”

And I left. But the point is, I’m sure there are many who believe that in fact they have an ethical obligation to the business interest of the clients, even if the business interest has nothing to do with the interest of the law. So, that’s a great example of this sort of structural misalignment that I think does exist in the law.

Madhav Khosla:

And it’s funny, your example recalls a conversation Katy, and I were having earlier where we spoke about how lawyers are conceived as being responsible to their clients, but they’re also thought to be officers of the court, and that element has sort of dropped out in some ways in the modern legal profession. But just on Trump’s second term, given the ways in which we find how the legal profession has responded, how have you viewed these events, and do you think that they sort of fit in actually to this broader institutional corruption thesis, and the example that you brought out, and some of the political economy story that you’ve been telling, or do they actually show perhaps some kind of fidelity to the rule of law in some deeper sense?

Lawrence Lessig:

Well, I do think that there’s a really dramatic struggle that’s going on inside of the Justice Department right now where the conception that the president, and his closest advisors have about the role of the Justice Department fundamentally conflicts from the self-conception of most traditional lawyers inside of the Justice Department. Now, the president, and his senior legal advisors are animated by a completely idiotic, historically baseless conception of the executive power of the president, the sort of so called extreme unitary executive power. And under the extreme unitary executive power, the job of everybody in the administration from cabinet officials to lawyers in the Justice Department to judges, immigration court judges, is to be advancing the policy of the president. Whereas the conception of lawyers, especially inside the Justice Department is our job is to advance the rule of law. That’s our job. We work for the Constitution.

We don’t work for the president. Now I’m quite struck by the number of people who’ve said, “Hell no.” So, we can criticize lawyers, and I criticize lawyers a lot, but if you take all these different industries like lawyers, and the media, and tech companies, and you ask in each of these industries, what’s the highest number of people who’ve said hell no? I think we’ve got a lot of lawyers who’ve said hell no. And a lot to have said, “I have a mortgage, and my kid’s going to college so I’m just going to get along, and this guy will be gone in four years. We’ll see what happens.” So, yeah, I think it’s a serious problem. And what I’m optimistic about is that I think more, and more ordinary people kind of see it as a problem.

I’ve been on this corruption gig now for 19 years, and at the very beginning it was very hard to get people animated, or even get them to recognize what the issue was. But I think today nobody can look at this system, and say that the system is immune from that corruption. And of course, the kind of corruption we se today is a million times worse. It’s like Mike in Hemingway’s Son Also Rises, how did you go bankrupt slowly at first, and then all it was, right? And that’s, I think, where we are.

Katy Glenn Bass:

I do admire all of the lawyers who have said, “Hell no.” And right at the beginning of the second term, he issues these executive orders that are targeting a number of big law firms, and a fair number of them, six, or seven, fight those orders in court so far successfully, but then a fair number of them immediately cut deals, including some who were not directly targeted but were trying to avoid being targeted by an EO. So, how do you read that through your institutional corruption lens?

Lawrence Lessig:

Yeah, I think that’s a complete betrayal, totally a complete betrayal. I think it’s because these people have begun to conceive of their job as the job of just maximizing the wealth of their firm. I’m sure you’re familiar with that story that Nick Bostrom pushes about how AI will run away, and he sort of imagines giving a super intelligent AI the job of maximizing paperclip production, and soon we have a whole universe producing paperclips. But corporations were the first paperclip maximizers, and Milton Friedman convinced corporations in the 1970s they had one job. Their job was to maximize paperclip production, maximize shareholder wealth. And that idea even at the time among corporations was deeply contested because many corporations thought, “No, no. Our job is to make sure that our community is healthy. It’s to help support growth in the area.” It’s like a lot of things we’re trying to do.

We’re not just trying to maximize wealth, but that became the kind of cool kids framing for what corporations were supposed to do, and that’s what they became exclusively focused on. And that’s what we’re seeing in corporations today. You say you’re a news organization. No, no, you’re a corporation. Your job is to maximize wealth. So, if you’ve got this tyrant who comes along, and says, “Sell your news department to me, and bend over backwards,” if that increases the shareholder value, that’s your job. You have no choice to do anything else except that. We increasingly see it in other organizations that also have kind of money at their core. So, we certainly see it in the context of these law firms who I think just thought this is simple. We can make this problem go away, and we’ll still have our bonuses at the end of the year.

I think you see that in the news organizations, you see that in many universities. The president comes in basically says, “I’m going to take your academic freedom away.” And they’re like, “Okay, but we’ll at least get the $500 million you are supposed to contractually be giving us.” So, they were willing to settle because they were just focused on the numbers, and I feel like we need a kind of Churchillian response here. We will fight them in the beaches, we will never surrender. And we don’t have institutions right now where we have leaders who are going to say, “Hell no, we are never going to surrender. I don’t care what it costs.” And I feel like we have so few inside of our powerful institutions right now who are not willing to draw that line. I think Harvard kind of tripped on it. I think that the administration was so clumsy, and the demands that they were making to Harvard that Harvard had no choice but to say, “Hell no, we’re not going to accept that.”

And then the administration said, “You caused this problem because you shouldn’t have taken that letter seriously. It wasn’t a serious letter.” And it’s like, “What are we supposed to do now?” But the point is that once they saw the whole world rallied to them, and say, “Wow, you guys are standing up to the president.” It’s like they didn’t realize how much latent energy there was out there in the public to find people who would just do the right thing for God’s sake, stop calculating, just do the right thing. And I think that’s our vulnerability as a society right now. Everybody thinks they’re supposed to do the rational thing. Well, that’s the paperclip maximizer. That’s the end of humanity. And if you don’t have people who are willing to say, “I get this is how I maximize my wealth, but this is how I am human. This is what I do to be human,” we’re lost. We need those people, and we don’t have them right now.

Katy Glenn Bass:

And thinking, going back to this, the 1970s marker that you set out for when the corporate mindset starts to shift, when do you think you see that in the legal profession?

Lawrence Lessig:

I certainly think it’s the corporatization of law firms. I think it’s when the law firms become big, and they essentially are no longer true partnerships where the partners feel this moral, and ethical obligation to each other. And you look at the kind of firms that resisted it. They’re the more traditional kinds of firms. They’re filled with people who think of themselves as warriors. They think of themselves as people standing up for rights, and good. Now, obviously they also have clients who are doing terrible stuff in the world. I’m not saying they’re pure, and then not saying they’re only doing good in the world, but that was their self-conception.

But then you have these firms that are then run by managing partners, and the managing partners are not even really lawyers anymore. They’re just kind of managers. And then managing partners answering one question, how much am I going to give my partners as bonuses at the end of the year, and this strategy’s going to cut that by 20%? I can’t do that. It’s against my job. Well, once that’s what managing partners think, that’s what the law firms think that’s all over for the law firms.

Madhav Khosla:

I guess some of that is the corporatization, and that political economy. Some of it is also actually the spread of law in some sense as law is now trying to serve so many more functions. And so is there some potential story of the idea that lawyers are now existent in this orbit? And that political economy, you mentioned universities, and I was just thinking how it interacts with another profession, universities, and law schools where if you look how much do kids pay to go to Harvard Law School, or to Columbia Law School is a huge amount of money. But I think the answer is because the customer is not the student, it’s the law firm.

And so everybody’s actually locked into that cycle. And the thing that it makes me wonder is that we teach professional responsibility doctrine entirely as being about the individual, but we actually don’t think at all, or teach in any way how to think about this sort of structure. And is it an opportunity to actually redesign how we think maybe about legal ethics, or about just in fact what the profession is as a structural idea rather than just what you need to do [inaudible 00:15:11] in a particular case?

Lawrence Lessig:

Well, I think that’s a great point, and I hadn’t thought about it before, but it connects to the way I would think about Congress as an institution. So, the focus on corruption in Congress was always a focus on whether you had corrupt members of Congress, which of course is an interesting question, but it’s not the most important question. It’s whether the institution itself is capable of acting because of the influences on the institution. And I think that’s a great way to think about the problem of the law as well. Now one big difference though is I’m actually pretty sure that within the next 20 years, we’re going to see a radical change in the institutional structure of law, and for the good. I mean, I’m a believer that as much as I’m terrified about our inability to manage AI risk, and I think AI presents enormous risk.

I mean, I’m not quite a P-doomer of one, but I do think there’s a real P-doom here to worry about. I’m completely acknowledging there’s a totally huge downside. Let’s recognize some of the upside. And one of the most important upsides could be to radically lower the cost of law. If we could spread AI inside of the law, and inside of the administration of justice, and inside of the administration of government, we could just make all of those systems work much better. And what working much better will be is that the rent seeking of these big firms will get blown up, and we’ll see a radical reorganization of what law firms look like. Now, I think there’ll always be lawyers. I’m pretty confident there’ll be many fewer lawyers as the capacity of each particular lawyer goes up because of this technology. So, I’m sure that we’re going to see a radical restructuring of law before we see a radical restructuring of Congress, or maybe not. Maybe Congress is going to blow up next year because obviously there’s zero support for the institution right now.

Katy Glenn Bass:

I’m going to shift gears a little bit here to talk about self-regulation, which you actually spoke about earlier in terms of the ways it is functioning as a real check on lawyers, and their ability to carry out what the Trump administration wants. So, of course, one of the defining characteristics of the professions is that they are largely self-regulating as is the bar, which sets its own ethics rules, and disciplines its members. But you have argued that institutions rarely reform dependencies that they’ve normalized. So, do you see bar self-regulation as something that is structurally capable of functioning as a real check in some of these cases?

Lawrence Lessig:

I don’t think we can speak in general about that, but I’m happy to concede that in general, things are getting more difficult. I do think, again, on the optimistic side, I was very close to Francis Haugen, representing Francis Hagen when she came out as the Facebook whistleblower. And so I spent a lot of time reading the Facebook files. And one of the most striking things to me about reading the files was Facebook’s filled with a lot of super talented, good, sold engineers, and an engineering is a profession. And so here are these good, sold engineers who are going to Mark Zuckerberg, and saying to Zuckerberg, “Look, this technology is killing young girls. We need to do something about this technology", or “This technology is creating extremism, and we could tweak it here, and do this there to make it so that it didn’t do those things.” And Zuckerberg’s singular question, I mean, he was the first paperclip maximizer is “What does it do to engagement?”

And if it reduced engagement, then they weren’t allowed to adopt the reforms. And if it increased engagement, or kept it at the same, they were allowed to adopt the reforms. And so when you think about those engineers, they were not constrained by their profession because their profession doesn’t have any normative constraints on them. You can say you’re supposed to be acting in a certain way, but there’s not an institution that takes away your engineering license, right? There’s nothing there to police them like that. And so I had many conversations with engineers who are kind of desiring to create the equivalent of like the ABA for engineers, and set a bunch of ethical codes for engineers so that engineers are able to point to the sign that used to be on Google’s law, which is do no evil. We’re not allowed to be an engineer, and do harm like this.

And that would be an enormous advance. I spent many years thinking about the way architecture, or code is law. Well, if that’s true, the engineers ought to have the same kind of professional constraints on them that lawyers have on them to think not just about what their client wants, but what they understand the values of engineering to be. So, I think that that’s an optimistic way to think about how that profession could be regulated. But I think in the American context now that dominance of these big firms is distorting the capacity of this normative rule to have a effective constraint on how lawyers in general are going to function, and I’m not sure what’s going to change that in the short term.

Madhav Khosla:

Larry, on your big picture point, and zooming out maybe from this example, just on the relationship between lawyers, and democracy, let’s say. One of the things that I’ve often thought about with your work on Congress is that you correctly focus on the number of people in Congress who spend a huge number of their time raising money. The other interesting thing about Congress is that lawyers make up a disproportionate share of it. And I was wondering whether, given that a lot of your work is on how the normativity, and the logic, and the principles of one domain sort of seep into another, do you think legal training from adversarial thinking, formal compliance, client loyalty makes lawyer legislators actually perhaps worse at recognizing the kind of corruption you described? Because lawyers also assimilate quite well into new structures, or path. There’s this fabulous line in Tocqueville’s Democracy in America that in a society where lawyers don’t get assimilated into structures of power, they will be active agents of revolution.

Lawrence Lessig:

Yeah. I first of all think that we have wildly too many lawyers in government. I also think that one thing we know about intelligence is that the smarter you are, the more you can convince yourself of whatever you want to convince yourself of. When they do studies of climate deniers, they don’t find that it’s uneducated people are the strongest climate deniers. It’s actually the educated people who are the strongest because they’re very good at rationalizing to any conclusion. And so lawyers are kind of trained at that game of rationalization. And so yes, if you have a lot of people whose profession is to practice this kind of rationalization, then you’re going to have that distortion. I mean, this is one particular, I think, corruption of American legal practice relative, for example, British legal practice. One great thing about the British system is that the advocates, the advocates who show up in court will argue on both sides of criminal practice.

They will be prosecutor one day, and defense the other day. And I think that discipline helps them understand the contours of a really just system. Whereas in the American system, you go down one path, you can never cross over. You do criminal defense work, you’re never going to be a prosecutor. You’re a prosecutor, you’ll never be touched by anybody in the criminal defense industry. So, that’s a really bad thing, kind of amplifies this bias. But absolutely. I mean, if you change the way you fund elections, which I think is ultimately what we have to have, you could increase radically the number of women, and the number of middle class, and diversity economically of people inside of Congress, because right now the natural successful person running for Congress is a white male lawyer that’s the perfect person to run for Congress. Why? Because they have what we used to call Rolodexes.

The biggest Rolodex is they have all of these clients who are going to obviously be interested in them being in Congress, and they can call all of them, and they can get all the money they need to be able to run for Congress. But if you’re like a working mother, or if you’re somebody who’s been working in a steel mill to the extent there are steel mills anymore in America, you can’t compete with that. You have no opportunity to compete with that. But where we’ve seen the system move to public funding systems, my favorite example is Seattle, which has vouchers. Basically all voters get vouchers, and they give the vouchers to candidates, and candidates fund their campaigns based on the vouchers they get from voters.

We see a significant increase in women, and extreme increase in the economic diversity of candidates, and extreme increase in the cultural diversity of these candidates. So, you begin to have candidates who reflect the society as a whole, and I think that’s the critical thing that we have to do. And if we did that, there would be fewer lawyers, and that would be, I think, a good thing.

Madhav Khosla:

Larry, one of the things about you is that you inhabit, in some sense, two professional lives, right? You’re a lawyer, and you’re a teacher, and you are part of a group of colleagues who co-wrote a letter in March of 2025 about the role of legal education, and lawyers with respect to democracy, and the rule of law. And can you just tell us just a little bit about that, and the way your students felt about it?

Lawrence Lessig:

Yeah. I mean, I think we can’t minimize the extent to which this administration is abnormal. And I think the question that many of us felt is, do we remark its abnormality as a way to signal that this is just not the way law is supposed to function? And I think none of us, even in March of 2025, had any clue about just how extreme, and abnormal it would become. And so I think we tried to articulate not an anti-Trump letter, but a letter that was emphasizing basic commitments to principles of rule of law that the administration was deviating from. It was a difficult experience with many of the students. I mean, I wouldn’t say a majority, it’s the Harvard Law School, but there were a significant number of conservative law students who were angry about that. And my colleague, Adrian Vermeule, in his Twitter face at least, was quite angry that the faculty had signed that letter.

But I pushed back both on Adrian, and also on some of the students, and I said, “Just tell me exactly how our conception of the rule of law is wrong. What have we said that’s just not true?” Because if you’re saying we shouldn’t say it because it’s against the existing administration, I just don’t buy that. And so when you think that Joe Biden was slapped on by the Supreme Court under the Major Questions Doctrine because his policies deviated from the traditional position that the law had taken, and then you compare that to this administration, and what the court has done in this administration, it’s night, and day, and people say the best parallel for Donald Trump is Franklin Roosevelt. And I think that’s true from the perspective of how significantly has he changed the law. But what’s different about it is that Franklin Roosevelt had Congress behind him, and then he had a midterm election where he overwhelmingly swept the country, and he had an even greater support after that.

And so there he had the people behind him as well. Here, we don’t have any laws of Congress at the core of the fights that are going on in the Supreme Court, and we certainly, assuming we have an election, not going to have a midterm election that rallies behind Donald Trump. So, he has grabbed more power than any president in the history of the nation, even if he might have not have as much additional power as Franklin Roosevelt, but Franklin Roosevelt didn’t just grab it, he earned it, and he did it along with the Congress, which is not happening now. And that’s why I think it’s the job of the court to be willing to lose in the face of the president. Those of us who study this look back to the court in 1935, it struck down critical laws that FDR had gotten past.

And most of the time people look at that, and they say those old conservative justices, they were just like imposing their own views. But I think what they did was really important, and very valuable because what they did was draw a line in the sand, and say to the public, “You tell us which side you’re on because we’re telling you what we think our tradition means, and whether we’re right, or not, what this president is doing is inconsistent with the tradition.” And that triggered a debate in the public, and that debate in the public was democratically edifying. Right now we’ve got the court basically ducking, and weaving wherever they can to avoid any real conflict, and we don’t yet have them sort of triggering a public reaction that says, are we with Trump in his new conception of us authoritarian presidency, or are we going to stand for what America has traditionally been? And so I think there’s a lot of confusion that’s left because of that lack of clarity, which I think we are all suffering for.

Katy Glenn Bass:

And still thinking about sort of shaping young lawyers, and their conceptions of themselves as lawyers in relationship to the rule of law, and to upholding democratic values. So, to what extent do you think legal education is currently doing a good job of this? To what extent can legal education even accomplish this goal? Is there a way to reshape legal education that might improve the way lawyers emerge, and their understanding of their role in upholding a Democratic system along with their clients’ needs?

Lawrence Lessig:

Yeah. So, I feel like I’m probably the least informed person to answer that question. I can tell you what happens in my class, and you’re not going to be surprised that I think what happens in my class is good because I feel like in my class, what I try to do is to get people to reflect all the time on the commitment to a principle over the expediency of the moment, and that decision that they need to make. And that’s as much about their own personal choices. So, like when I counsel law students, I will tell them the really important thing you need to do is to make sure you’re never spending more than 60% of your salary. Why? Because you always want the freedom to choose to do something differently. And if you spend 90% of your salary, you’re locked in, you can’t change.

You’ve got like a mortgage, you’ve got kids in school, and that the firm does something you don’t like, you’re stuck, but you need to maintain that freedom because you’ve always got to be making the decision. Am I doing what I believe in? Am I doing what I can have confidence is right? And so it’d be great to talk to law students who’ve gone through it, and see how often do they feel like they’re being called on to make that judgment, and to decide on which side of that division they’re going to stand. Now, the other great advantage I have is I teach first years, and first years are the most idealistic. These are people that are going to change the world by doing right, and like arguing for what’s right. And so I just love the opportunity to teach people with those ideals, because it’s easy to just push a button with them, and get them to reflect, and to see this is why I came.

This is why I wanted to be a lawyer. I wanted advance causes that I think are valuable, but I’m sure that by the time they graduate, the system has worn that out of many of them, and they’ve accepted that they’re going to go work for a law firm, and they’re not going to be doing the kind of practice that necessarily advances their conception of justice. And the truth is between those two extremes, but I would love to understand how our students experience this more.

Madhav Khosla:

As we move towards closing this, and circling back a little bit, one of the things that you said that was very powerful that’s been playing at the back of my mind is the capacity for self-rationalization, and how it’s not fortuitous that lawyers would be so good at it. Citizens United has been so central to your work because it’s both exemplified, and made worse a problem that you have had your finger on for years. If you think about something like that, and you think about it as a dramatic political crisis, it’s also true that it was built by lawyers. It was decided by a court of lawyers justified through a First Amendment framework that lawyers developed. If we think about this, there is this one moment where let’s just say the corruption of the legal profession exists because of a certain political economy, that law firms have become basically corporations.

And so the fidelity is not actually to something law related, but the fidelity is just to maximizing profit. But there’s another where it may not actually even be necessarily maximization of wealth, or the corporate mindset in that way, but actually just instrumentalism, or careerism, or just the idea that actually the only thing that matters is clients, and winning, which is a somewhat distinct kind of problem to just money. And it seems very pervasive because part of what is interesting throughout in the professions is that professions are almost definitionally non-instrumental. There’s something about what it means to be a good doctor, which can’t be captured not only by money, but not by anything instrumental in some sense.

Lawrence Lessig:

Yeah, I think that’s a good point. I think that it’s important to recognize the way lawyers can be exploited by interests that are trying to advance their own interests, not for principled reasons, but just to advance their interest. I often think about Robert Borick who began much of his work was around constitutional theory, but he became really famous for his crazy views on antitrust. When he wrote his first piece on antitrust, it was so crazy that nobody at the Yale Law School took it seriously. It was completely removed from reality. But Borick was just sort of spewing out ideas, constitutional ideas, antitrust. He was just an academic. And all of a sudden a certain set of them became really valuable to economic actors, and they got amplified. And when they got amplified, they became quite significant in the world. I also think that’s kind of true in the money, and politics area.

There are people who absolutely for good faith reasons are advancing a very extremist view about the libertarian conception of campaigned finance, where you’re not allowed to have any regulations at all. That produced Citizens United. But from my perspective, the real frustration about Citizens United is the extremely bad lawyering that has allowed people to believe that Citizens United created Super PACS because Citizens United did not create Super PACS. Super PACS were created by a lower federal court decision, Speech Now versus FEC, three months after Citizens United. And that decision is based on a very basic obvious, once you see it, logical mistake. But once Speech Now made that decision, three other circuit courts followed it within a couple years, and so it became settled law. Now we’re in the middle of a fight about this right now. We’re in the First Circuit. We got an initiative passed in Maine by 75% of the vote banning Super PACS in the First Circuit.

We’re going to have an argument as soon as it gets scheduled about whether that position is actually mandated by the Constitution. The Boston Globe just had an editorial yesterday where they said the court’s got to take this up right away because it’s really critical, and they’ve identified the mistake, and there’s a chance the Supreme Court will do the right thing. And in the Supreme Court, I feel like we will be giving the Supreme Court a gift because we will be saying to the Supreme Court, “You don’t have to reverse Citizens United. We’re not asking you to reverse Citizens United. We’re asking you to apply the reasoning of Citizens United to a set of facts that you’ve never considered because you didn’t review that decision to give us Super PACS.”

And I think the Supreme Court’s going to be able to write an opinion that says, “Hey, Bernie Sanders, you’re wrong. Citizens United is perfectly fine. We totally endorse Citizens United,” but there’s no reason why Citizens United means that you have the right to contribute unlimited amounts of money. And so Super PACS can be limited even if the expenditures cannot be limited. And that will be a huge victory, and it will also be a huge embarrassment to the legal profession because we’ve lived with this deeply corrupting system of Super PAC spending for the last 16 years. And there’s no reason that we should have taken... It’s going to take at least 18 years to get to the place where the Supreme Court fixes it. And the idea that we’ve lived for 18 years with what is in essence a logical, simple, obvious mistake is an embarrassment. A legal system that kind of makes that kind of mistake is not a system you should be proud of.

But I think that I’m pretty confident we’re going to get this corrected, and when that happens, we’ll have a reason to celebrate the balance that can come. But I think that the reason we’ve not seen that is that all the money in the world is on the side of the libertarian position, and it’s really been hard to stand up something in balancing that position that has a fighting chance of prevailing.

Katy Glenn Bass:

Okay, that’s fascinating. What is the name of this case so that we can start tracking it?

Lawrence Lessig:

So, the case is DTA Dinnertable Action versus Schneider, who’s the head of the ethics commission in Maine. And we recruited Neil Katial to be our lawyer. So, Neil, I’ve known forever since he was a student, and I was trying to get him, and he was avoiding my calls, and finally I got him on the phone, and he said, “Lessig, look, I don’t take loser cases. It’s a total loser. You’re never going to win this case. I’m not going to waste my time on it.” I said, Neil, just have lunch with me, just one lunch. And so he took me to the worst restaurant in Washington, and we’re having lunch. And midway through the lunch, he said, “Oh, my God, you’re right. You’re right. I can win this case. I can totally win this case.” And so I think that when Neil, the tariff slayer gets up there, and tries to slay Super PACs, we’re just going to call him the slayer. He’s like the tariff slayer, the super PAC slayer. He’s just the most impressive lawyer to persuade conservatives to do the right thing that we have. And I think he’s going to prevail.

Katy Glenn Bass:

That’s really exciting. It’s like we have a legal cliffhanger to end this episode on. So, we will pay attention to that. So, you’re awaiting scheduling in the first circuit for this case.

Lawrence Lessig:

That’s right.

Katy Glenn Bass:

Okay. We will keep up with it. Larry, this has been really great, and really thought-provoking. Thank you for taking the time to come on the podcast, and sharing your views, and your long years of scholarship, and insight with us.

Lawrence Lessig:

Thank you for having me.

Madhav Khosla:

It’s been a privilege, Larry, really. Thanks so much for being on this.

Lawrence Lessig:

Thank you, Madhav.

Katy Glenn Bass:

Lawyering Without Law is a production of the Night First Amendment Institute at Columbia University, and is hosted by Madhav Khosla, and me, Katy Glenn Bass. This episode was produced, and engineered by Dustin Foote, fact checking by Connor Menzies, and Sophia Rojas. Candace White is our executive producer. Our music comes from Invato Elements. The art for our show was designed by Jay Volmar. Thanks to Lawrence Lessig who joined us for this episode. Lawyering Without Law is available on Apple, Spotify, and wherever you listen to podcasts. Please subscribe, share, and leave a review. We’d love to know what you think. To learn more about the Knight Institute, visit our website, knightcolumbia.org. That’s Knight with a K, and follow us on social media. We’ll see you next time for a conversation on the shifting identity of the legal profession with Professor Deborah Pearlstein of Princeton University. Bye for now.