Lessig Fails the Whitesnake Test

by Michael C. Dorf

Over the last several months, various commentators have sometimes observed that "outsider" candidates were doing exceptionally well in both the Republican and Democratic pre-primary polls. The claim was and remains undeniably true of the Republicans, with political novices Donald Trump and Ben Carson still far ahead of the professional politicians. How long Trump and Carson can continue to outpace their rivals, and whether poll numbers translate into caucus support and primary votes, remain to be seen. The outsiders-on-both-sides pundits cited Bernie Sanders as a parallel phenomenon.

Other commentators have pushed back against the Sanders-as-outsider meme, and rightly so. Sanders is not an outsider. It's true that he has formally been an "Independent" rather than a Democrat but that is largely a matter of labels. In the House and in the Senate, Sanders has caucused with the Democrats. His outsider identity is largely due to his use of the label "Socialist" to describe his views, but those views are extraordinarily close to--indeed indistinguishable from--the views of other politicians in the progressive wing of the Democratic Party over the last 80 years. And, by contrast with Trump and Carson on the Republican side, Sanders has not been the dominant frontrunner in the Democratic race. Although there remains time for surprises, he appears to have peaked, with the insider candidate comfortably retaining frontrunner status.

There was a true outsider in the Democratic race--one who, in terms of experience in politics, was comparable to Trump and Carson--but he registered virtually no support: Harvard law professor Larry Lessig, who bowed out of the race a week ago. In announcing the abandonment of his quixotic campaign, Lessig argued that the Democratic Party changed the rules about how to calculate the minimal support (1%) needed to participate in a debate. Here is the announcement:

(Click this link if you don't see the embedded video.)

It's hard to take seriously Lessig's sense of aggrievement in that video. Does anybody really think that Lessig was kept out of the next debate because Hillary Clinton was afraid to appear on the same stage as him? Lessig's base is pretty much a (small) proper subset of the supporters of Bernie Sanders, so having him in the race could only benefit Clinton by diminishing Sanders. At best, it could have shone some attention on Lessig's signature issue: corruption of our electoral system, especially with respect to Congress.

The demise of Lessig's candidacy nonetheless offers an opportunity to reflect on the respective delusions of Republican and Democratic voters. The leading outsider candidates for the Republicans are a real estate mogul/publicity hound and a retired neurosurgeon. Neither appears to have any experience or aptitude that would be relevant to the job of president, but their respective biographies--individually and, even more so, collectively--perfectly express what many Republican voters feel. By supporting Trump, Republican voters can express the view that the government ought to be run like a business. Slightly better informed voters, who realize that Trump's main business at this point is selling his name, would perhaps favor Carly Fiorina, except for the fact that her own business record is questionable at best. Trump also enables his supporters to express anger and to rebel against "political correctness."

Meanwhile, Carson's successful medical career plays to the same notion that a career in politics is merely a sign of corruption. Although he is not nearly the vehicle for the vicarious expression of anger that Trump is, Carson does have two advantages: He is genuinely devout; and his up-by-his-bootstraps-and-out-of-the-ghetto story permits his mostly white supporters to reassure themselves that racial isolation is not a structural problem in America. Together, Carson and Trump are the good cop and the bad cop of the Republican base.

Lessig is nothing like either Carson or Trump except in one key respect: His candidacy, like theirs, was premised on the idea that someone could be qualified to be president without ever having held any high-ranking or, for that matter, medium-ranking, position in elected or appointed office. President Obama was widely regarded as quite inexperienced for a president but he had been a state legislator for eight years and a U.S. Senator for four years when he was sworn in as president. As far as I can tell, the only government positions Lessig has held are his stints as a law clerk for Judge Posner and then for Justice Scalia, and his position as special master in the 1990s antitrust case against Microsoft, a job from which he was removed by the DC Circuit in response to allegations of bias. Based on experience, I am as qualified as Lessig to be president, and many of our colleagues in legal academia (who have had more substantial government experience) are more qualified.

To be sure, Lessig has been a very successful legal academic. He was quite a good constitutional theorist (with whom I had a respectful disagreement long ago: my opening; his response; my reply). He was an early theorist and proponent of the open internet and free software, a domain in which institutions he helped found continue to play an important role. And over the last decade, Lessig has refocused his attention on combating corruption in politics by promoting campaign finance reform and other measures. In the latter two phases of his career, Lessig has been both an important academic and a public intellectual.

Is that enough? Vaclav Havel had never held public office before becoming President of Czechoslovakia but then, holding public office under communist rule would have been disqualifying. Likewise for Nelson Mandela under apartheid rule. In any event, one need not denigrate Lessig's political activism to acknowledge that it is of a different order of magnitude than Havel's and Mandela's leadership positions as dissidents.

And, in any event, the United States does not typically reward public intellectuals with public office. Occasionally a celebrity becomes a politician: Ronald Reagan; Jesse Ventura; Arnold Schwarzenegger. War heroes, astronauts, and business tycoons can also sometimes leverage their fame and/or wealth into political advantage, but public intellectuals rarely have either. Lessig jokingly admitted as much. In a backhanded homage to the late Senator Ted Stevens--who said the internet was not a dumptruck but "a series of tubes"--Lessig described himself in his withdrawal speech as essentially unknown outside some of the internet tubes. He was right.

A colleague of mine once proposed a test for determining whether someone who is well known among academics is famous or merely "academic famous." Is he or she as well known as the blues/rock/metal band Whitesnake? Google hits are a crude measure of notoriety but they are certainly right to within an order of magnitude. Googling "Larry Lessig" produces 300,000 hits. Googling "Lawrence Lessig" produces another half a million. Let's round up to an even million. "Whitesnake" produces 7 million. "Bernie Sanders" gets 69 million. "Hillary Clinton" gets 130 million. They're serious contenders. Lessig is merely academic famous, and in America that doesn't get you votes.