Larry Lessig is Brilliant – But His “Referendum Candidacy”..?

by Poligags

Lawrence Lessig is an ivy league professor, political activist, and amazing mind. He helped define Internet law and was on the founding board of Creative Commons. He has sought to correct campaign finance inequity through his Mayday (Super) PAC’s influence, helping to elect those who would advance campaign finance reform legislation. Recently, he announced plans to possibly run for the presidency in 2016 as a “referendum candidate”.

Lessig’s Plan

Lessig’s attention is laser focused on fixing the rigged electoral system first, recognizing this fatal flaw as the one from which other national woes originate. Lessig would run for president and his candidacy would be a referendum. If elected, the theory holds, a mandate supporting that referendum will have been achieved.

The Election

The referendum presidency would exist solely to pass the Citizen Equality Act of 2017. Once that goal has been achieved, Lessig would quit and turn the balance of his term over to his VP.

Before any of this can begin, however, Lessig needs to bank $1 million by Labor Day (which will be returned to donors if the threshold isn’t met). He raised $150,000 by the end of the day after he announced.

The Citizen Equality Act of 2017

Lessig proposes – or, more accurately, proposes to propose the Citizen Equality Act of 2017. According to his website, if the million dollar goal is met by Labor Day, he will “crowdsource a process to complete the details of this reform, and turn it into proposed legislation by January 1. In other words, he’s got nothin’ right now.

However, that “nothin’” consists of three fundamental parts:

The Equal Right to Vote – at present, this consists of the Voting Rights Enhancement Act of 2015 (S. 1659), which would amend the Voting Rights Act, and the Voter Empowerment Act of 2015 (HR 12), which amends the National Voter Registration Act.

Equal Representation – achieved through the termination of gerrymandered districting, with the Fair Vote plan serving as the model to achieve equality.

Citizen-funded Elections – it is proposed that some hybrid of the Government by the People Act (HR 20) and a plan floated by Represent.US (which does not appear to have been introduced yet) be drafted.

At present, none of these challenge the concept of corporate personhood or would overturn Citizens United and cases associated with it. To accomplish that requires that either the Supreme Court reverse itself or a constitutional amendment be passed and ratified by the states.

So What’s Wrong With The Plan?

Wrenches in the ‘Works’

The Presidential Bid – Lessig appears to be running as the personification of the referendum he proposes. This country elects presidents, not referenda, with the victor ultimately decided by the Electoral College.

Likewise, he will choose his vice president with a little help from those who “vote” via There is no means for determining whether those who “vote” via the website are eligible voters, which calls into question the legitimacy of such an “election”. Nevertheless, Lessig’s choice would succeed him upon his stepping down.

The US Constitution says that the President and the Vice President are chosen separately; in practice, however, they are chosen together. In the event that a vice presidential choice fails to receive an Electoral College majority, then the Senate selects the VP. Lessig’s plan appears to be outside of this legal framework.

A National Referendum – A referendum is a right reserved to the people to approve or reject an act of the legislature, or to approve or reject legislation that has been referred to them by a legislature. Referendum power is derived from a state’s constitution; people do not have the right to challenge federal legislation by referendum. Likewise, the Constitution does not provide for a national initiative.

The subject of initiatives and referenda (I&R) is addressed by the I&R Institute, which says “[t]here have been two distinct approaches to obtaining a national I&R process in the United States. One is working through the states and the other is by getting Congress to pass an amendment establishing the initiative process.” In other words, a constitutional amendment proposed, passed and ratified in accordance with Article V of the Constitution would be a prerequisite.

Article II, Section 1, Clause 8 of the Constitution

Should Lessig’s referendum candidacy be successful, he hopes to be in office for a mere day, have Congress approve his Act, and allow him to step down. Given their record over the years, this single-day scenario is unlikely. So what of the nation’s other business while Lessig waits for his Act to move through both chambers? In an August 19 interview with Rolling Stone, Lessig said he “has to convince the public that, in the case of something extraordinary, they could act as a kind of leader that the nation needs at the time of crisis. That tepid response does little to inspire confidence.

Existing Legislation and Candidates

As noted, the as-yet-written Lessig plan is a patchwork of existing and proposed legislation. One of the declared candidates for president already introduced legislation that would overturn Citizens United; the other bills mentioned above can stand, be amended and pass or fail on their own merits. Lessig, through his Mayday PAC, could advocate for the advancement of any or all of them.

© 2015 Poligags

UPDATE (September 8, 2015) – Lessig achieved his million-dollar goal over the Labor Day weekend, and officially announced.