« Many other takes on the Kim Davis mess (Updated) | Main | When Political Correctness Was, Well, Correct »

Monday, September 07, 2015

What if it doesn't pass and other questions about Lessig 2016

Larry Lessig successfully crowd-funded his $ 1 million and is running for President as a single-issue "referendum candidate"--he will serve as President only until passage of the Citizen Equality Act of 2017, after which he will resign and have his Vice President (preferably a liberal such as Elizabeth Warren or Bernie Sanders) become President.

I generally think this is silly. And I say this while supporting pretty much all of the substantive provisions of the Act and as someone who might support a Lessig-type as a presidential candidate (if I thought he could win a general election, which I don't). But a few questions--none of them new or original, but I throw them out here:

1) What if the law does not pass in his first term? Would he seek reelection in 2020?

2) What does it mean for the law to "pass"? Must every piece pass? If not, how many pieces? Must it pass in the current form or are amendments permissible? If not, how watered-down can a version be to still constitute "passing" so as to trigger his resignation?

3) Does he resign after the legislation is signed? Or does he wait around for completion of judicial review? Nothing in the Act seems constitutionally questionable. Of course, in 2009, we all would have said that the health-insurance market affects interstate commerce. And what happens if some (or all) pieces are declared invalid.

4) If he fails to resign as promised, is that an impeachable-and-removable offense?

5) Accepting that legislation takes months even in a functioning Congress (which we surely do not have), how will Lessig handle all the other presidential responsibilities or who will he delegate them to? Will the VP be handling most of these other presidential duties? How will he fill judicial and executive vacancies? Is it fair to question whether he cares about these "mundane" aspects of the presidency and to be concerned that he doesn't?

6) Is it fair game during the election and "debates" to prod Lessig about his views and plans on other issues, accepting that he will have to do other things as President, at least for some period of time? Will he answer these questions and will he answer them well?

7) Are substantial numbers of Democratic voters this detached from political reality? At least part of the frustration with the Obama presidency involved the extraordinary (and unrealistic) expectations when he entered the White House, which he could not possibly meet.* And he began his presidency with substantial majorities in both houses and a filibuster-proof majority in the Senate. And he still could not get done everything he wanted or tried to do, at least not in the absolute way he wanted.

* No, that was not the only problem. But it has played a role in the perception of his achievements as President.

What makes Lessig (or those who would support him) think he will have any more success, especially since he definitely will not have a House majority and almost uncertainly will not have a Senate majority. Does he (or his voters) believe putting the word "referendum" into his candidacy will actually give him more of a mandate than Obama enjoyed despite having received 70 million votes and 365 Electoral votes? Does he (or his voters) believe Mitch McConnell, John Boehner, or any of the representatives who might lose their seats under a non-gerrymandered proportional representation scheme will care?

8) Aren't all the incentives for Republicans to oppose and drag their feet on this (beyond even the ordinary perverse incentives of divided government)? The longer it drags on, the longer they keep in office someone who really does not want to be President. And the longer it drags on (or the legislation does not pass), the easier to run against Lessig in 2018 and 2020 as a failure who could not achieve his one (and only) presidential goal. "Presidential failure," not "congressional recalcitrance," is always the narrative on which the press, and thus the public, seize.

Posted by Howard Wasserman on September 7, 2015 at 08:22 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

Comments

I think one could agree with all of Christine's premises but still describe it as a "stunt." It's not a stunt in the sense that it's not done lightly or without any investment on his part or on the part of his supporters. But isn't it a stunt in that he is running for President for an ultimate purpose (i.e., to "move the pendulum") other than to seek the office of the President? I don't know enough about politics to have a strong opinion as to whether this is the best way to effect the change he is seeking, and I don't mean to suggest there's anything wrong with it. But it does seem to be a "stunt" in that he is just trying to be "the messenger for the issue," as Orin puts it.

Posted by: Steve H | Sep 8, 2015 11:47:27 AM

Howard, I think Lessig needs a plausible-enough story about how his Presidency would work only to make his campaign seem plausible enough that a broad base of people could plausibly support it -- which would be necessary to have other campaigns (ones that could actually) win pick up the baton. So yes, you're right, it would never work. But the important thing for Lessig's goal is that at least some people think it might.

Posted by: Orin Kerr | Sep 8, 2015 11:43:27 AM

I agree with Orin. Larry Lessig is trying to bring attention to this issue, which is the Catch-22 of all problems: the only folks who can change the system are the ones who don't want it changed. Apparently, no matter how good his TED talk is, he gets no reaction from the Lesters or the ones who rely on Lester money. He is trying to move the pendulum, at great personal cost of time and resources. I don't think it's a stunt.

Posted by: Christine Hurt | Sep 8, 2015 11:03:15 AM

Yes, "[p]erhaps this 'stunt' by Lessig will show how much interest there is in this issue," but I don't think he'll get the answer he wants.

Posted by: Matt Bodie | Sep 8, 2015 10:36:29 AM

I think Orin's right. During the recent Republican debate, I believe that Trump was the only candidate who discussed this issue. The press isn't raising it. In my mind, Lessig is working to get standing to focus national attention on it.

Posted by: Amy | Sep 8, 2015 9:58:53 AM

Orin: The "what next" is part of his overall run, it seems to me. It's part of how he is calling attention to the message, by also disclaiming ambition to office and putting himself out there as only about the issue and not the office. So I think the realities of what he is proposing, beyond the proposed legislation, are part of the message.

Posted by: Howard Wasserman | Sep 7, 2015 9:10:42 PM

But the point of running is to make other politicians focus on the issue, not actually to get elected, right? Let's imagine, hypothetically, that Lessig's one-issue agenda became popular enough to possibly get the nomination. In that event, the other Democratic nominees would also embrace Lessig's agenda and make it a priority that it currently isn't. Lessig's candidacy would fade quickly, as (with my apologies to those in the 02138 zip code) his appeal as a broad candidate is limited.

It seems to me that Lessig is just the messenger for the issue. Running is a way to see if the message takes off. So how it would work if he were elected is pretty much beside the point.

Posted by: Orin Kerr | Sep 7, 2015 1:07:30 PM

Bernie Sanders seems like the best chance in a long time to back something like this, and even Bernie has made it a third tier issue. Perhaps this "stunt" by Lessig will show how much interest there is in this issue, wake Bernie up on this issue, and then Lessig can stand aside.

Posted by: Anon | Sep 7, 2015 11:10:18 AM

If he thinks he's the right person for the job, then run for President and see what happens. And this law can even be the cornerstone of his campaign. If he doesn't think that, then back someone who will and try to get on the inside and wield some influence. But don't do it with stunts that don't actually stand up to serious scrutiny or legal and political reality.

Posted by: Howard Wasserman | Sep 7, 2015 10:54:19 AM

As Lessig recently asked on his blog, OK, what is your solution?

Posted by: Anon | Sep 7, 2015 9:42:46 AM

Post a comment