3 Libertarian Ideas to Strengthen Democracy
2022-08-15 · Guest: Ilya Somin (Professor of Law at George Mason University) · 52:46
Libertarian proposals for the Guardrails of Democracy project
Bob Zadek interviews Professor Ilya Somin about the National Constitution Center’s “Guardrails of Democracy” project. They discuss the libertarian team’s proposals to strengthen the democratic system through decentralization, foot voting, and reforming the Electoral Count Act to prevent election subversion.
Topics: National Constitution Center, Democracy, Foot Voting, Electoral Count Act, Polarization, Political Ignorance, Zoning, Electoral College
Speakers: Bob Zadek, Ilya Somin
Introduction to the Guardrails of Democracy Project [00:00]
Bob Zadek: Hello, everyone. Welcome to The Bob Zadek Show, the longest-running libertarian talk radio show on all of radio and podcasting. Thank you so much for giving us an hour of your time today. We hope we will make your hour worthwhile.
One of the most important nonprofit organizations in the country is the National Constitution Center. As its current executive director, Jeffrey Rosen, is fond of saying, it is the only nonprofit organization funded by Congress—don’t get suspicious, it’s nonprofit—funded by Congress for the sole and exclusive purpose of increasing awareness and understanding of our founding document, the Constitution. And what a good job it does. I commend membership in and participation in the National Constitution Center. It offers a plethora of interesting presentations, an interactive constitution—it is the go-to site and the go-to physical place in Philadelphia to learn more about the Constitution.
The National Constitution Center undertook a very important project. It sought to try to understand what’s not working in our system of democracy. Which guardrails—the phrase the National Constitution Center has chosen—which guardrails either have failed us or ought to be put in place but are not, in order for our system of government to work better? A progressive group, a conservative group, and a libertarian group, independent of each other, analyzed that question and come up with their solutions.
And I will have today, and for upcoming weeks, a team member from each of the three groups to present their similar, but in many ways quite different, answers to the question of what’s wrong or what is needed in terms of guardrails of democracy in order for it to work better. There doesn’t seem to be much dispute that elements of our system of government don’t seem to be working so well, and each of us, if we have thought about it, have not been able to really nail down the problem or problems. Well, today we will start to do that.
With that introduction, I’m delighted to welcome back to the show Ilya Somin. Ilya is a professor of law at George Mason University. He focuses extensively on constitutional law, property law, and the study of everyday people in the activity of representative governance. Ilya has written many books and has been a frequent guest on my show. The book that I am most fond of citing is Free to Move: Foot Voting, Migration, and Political Freedom. Ilya has worked with his team members on the libertarian team trying to solve that important question raised by the National Constitution Center. Ilya, welcome back to the show today. And tell us a bit about the project in general. What is it that the National Constitution Center is seeking to do, and how did your teammates—we’ll get into the specifics for most of the hour—how did your teammates approach, in the big picture sense, finding solutions? So first, what is the project all about? And then, how did you go about trying to solve it?
Ilya Somin: So first, thank you for having me to speak about these important issues. While obviously I don’t work for the NCC and therefore I can’t definitively speak to their motives, I think the goal of the project was to recognize, as I think most people do, that we have had some serious problems with the democratic system in the United States over the last several years, particularly but by no means exclusively during the 2020 election and its aftermath. Therefore, they decided to do what they’ve done on a number of other occasions for other issues, which is convene teams of specialists from different ideological viewpoints to try to think about what the problems are and what are the solutions.
And as you mentioned, there’s a conservative team, there’s a progressive team, and I myself am a member of the libertarian team. The other two members of our group were Walter Olson and also Clark Neily, both of the Cato Institute. And to give you a very broad overview of what we tried to do in the Team Libertarian report is we tried to look at three aspects of the crisis that our democratic system is in and how they can be addressed.
First, sort of immediate threats to the integrity of the electoral system and the political process, like those that we saw in the 2020 election with President Trump’s efforts to overturn the result and stay in power even though he actually lost the election. Second, the broader problem of how to empower people to have a meaningful say in the policies that they live under. And so we have a second section of the report which is devoted to showing how there are many ways we can empower people to vote with their feet about those policies in our federal system, but also by expanding opportunities for people to make decisions in the private sector. And often that is actually more empowering and leads to better decision-making than traditional ballot box voting.
And finally, we have a section of the report which is dedicated to outlining ways in which we can increase people’s opportunities to participate in governance, particularly by strengthening the jury system, which, according to the founding fathers and many others like Alexis de Tocqueville, is a central mechanism by which ordinary people can participate in government, but which to a large extent has been lost or at least degraded over the last several decades. So we try to outline three types of ways in which the democratic system can be strengthened and improved.
Inherent Problems vs. Institutional Failures [07:30]
Bob Zadek: When I first learned of this project, building or restoring guardrails to democracy, my first reaction, Ilya, was “problems of democracy.” Aren’t the problems inherent in democracy itself? That is to say, once you turn over governance to millions of people acting collectively, that is a lot sloppier, oftentimes less pleasant, messy as all get-out, but at least it’s the action of freedom. Obviously, a citizenry that is under strict governmental control is kind of quieter, at least on the surface, and it functions, if functioning is a goal in and of itself. So what are the signs that there are problems at all, as opposed to that’s simply what democracy means?
Ilya Somin: So it’s certainly true that there are certain problems inherent to democracy, such as the fact that we might talk about later that voters often have very little incentive to be well-informed about the issues. And some of those problems probably can’t be dealt with, but others can be mitigated in various ways that we talk about in the report, even though they can’t be eliminated entirely.
On the other hand, there are problems that are not inherent to democracy but which are just arising from some specific aspects of current institutions and the way they work. Such as, for example, it is not an inherent problem of democracy that a loser of an election like President Trump in 2020 refuses to recognize the result and tries to overturn it by various means. There are safeguards that we can strengthen to prevent occurrences like that. And then finally, there are some types of political participation that can be expanded and be made more effective even within a democratic system.
So in our report, we try to deal with all three of those sorts of things. But you’re right that some degree of conflict is unavoidable in democracy, and some people are going to be disappointed if your preferred candidate or party or ideology loses in an election or otherwise can’t get everything that they want. That is inherently disappointing, and that can’t be completely eliminated, though in the foot voting section of our report, we do suggest ways that that can be mitigated.
Bob Zadek: My last general comment, and then we’ll get to the fun stuff, which is your—and I will say our—solutions, because I have given you permanently the right to vote for me when you participate in these groups. So you have my standing proxy until revoked by my death. But until then, you have my proxy, so you speak for me.
But the starting point is that we start with our vision of how democracy is supposed to work, and then we see how it’s not working. There isn’t an examination into whether the problem is democracy itself. Whether or not, to put it more directly, have we as a country evolved so that we have allowed, provided for, too much democracy? Because after all, the amount, if you can measure the quantity of democracy—but 17th Amendment is a perfect example of increased democracy, as just one example, when power was given to the voting public at large rather than to a select group. The disappearance of an effective Electoral College, another movement towards more popular democracy as opposed to less democracy. So I guess we are just assuming in your work that the assumption is the more democracy the better, and whether or not we have too much simply is off the table for this conversation. Is that a fair assumption?
Ilya Somin: No, I don’t think so, because depending on how you define democracy, I certainly recognize as an individual, and I think our report also recognizes in some ways, that we can try to do too much through the democratic process. And in fact, in some ways we do. And that’s why we have an entire section of our report which is devoted to expanding people’s opportunities to engage in other kinds of decision-making mechanisms, like voting with your feet. And in some ways also the jury system. The jury system does have some commonalities with democracy, but it’s also different. So it may be, and it’s certainly my view, that if you’re trying to do too much through a democratic process, and particularly if you’re doing it in a very centralized way with the federal government increasingly having more and more power, that that can be dysfunctional and problematic and it can even help to undermine democracy itself. So it is certainly not my assumption, and probably not that of my co-authors either, that there can never be too much democracy and that more is always better. I think there is somewhere—it’s hard to know exactly what point—but there is somewhere sort of an optimal amount of democracy, and if you try to have too much of it, then you will have serious problems.
Polarization and Immediate Threats [14:20]
Bob Zadek: Country becomes one big town hall meeting. Okay, let’s roll up our sleeves and let’s get into it. Give us—pick whatever you wish as a starting point to help our listeners understand how you view fixing the guardrails of democracy. And what is an example of the libertarian fix to the problem? And when you present an example, identify, if you can, the problem specifically that you are seeking to solve and then the solution from a libertarian point of view.
Ilya Somin: Sure. So I think we have a number of different kinds of problems which have really come to a head in recent years, though most of them have previous origins. One is that, as we just saw, there can be an effort and has been an effort to try to overturn elections and monkey around with them, as we saw with Trump and his supporters in the last election, but there were precursors to what he did in previous elections.
Secondly, we have the problem of growing polarization and hostility between the parties and their supporters, which is part of the reason why Trump was able to try to do what he did. And third, there is the growing sense, and in some ways the reality, that it’s very difficult often for individual voters, at least ordinary people as opposed to political elites, to actually have a meaningful say in the policies that they live under. For any one voter, most of the time, the chance that their vote will make a difference is incredibly small, about one in 60 million in a presidential election, somewhat higher in other elections, but still low. And closely related to that is that a high percentage of the time, most voters have very little idea of the issues that they’re voting in elections, and therefore they often make poor decisions.
So there’s this interrelated complex of problems whereby we have increasing hostility and polarization, an increasing sense that often individual ordinary people have very little leverage over the political system, and then finally the attempts at outright subversion of the electoral process that we saw in 2020, but that could potentially recur. And our report presents sort of different solutions to each of these problems, some of which are distinctly libertarian, other ones I think can be shared by people of widely differing persuasions, though they do have some libertarian elements.
In the first part of the report, we propose specific solutions to plug some of the holes that have been revealed in the Electoral College system and the way votes—Electoral College votes are counted and certified and so on. Many of these actually are embodied in the Electoral Count Reform Act, which is likely to pass Congress soon. So that’s the one part that may actually be fixed in the near future. But I also have a second set of recommendations which deal with the deeper structural problems of political ignorance and polarization.
Bob Zadek: If I may, if I can just interrupt—I usually try not to, but I’m fearful I’m going to lose a thought. You used a phrase twice: “increased polarization.” Now, you and I both know as political junkies that when a speaker seeks to prove a point by making a comparison, the tactic is, if you want to emphasize your point, you pick the ideal starting point and then you—whether it’s numbers or the time when interest rates were lower or employment was higher—you pick a starting point, pretty much at random, so that you can make a statement from that starting point something is worse than it was before. So you said “increased polarization.” I focused on “increased.” Increased from when to when? And when I ask the question, I think back to myself, because I was around, I think back to the Vietnam War era. A lot of polarization, and a lot of public figures got assassinated, and a lot of cities got burned to the ground or close to it. So there was polarization in my memory. I think I was taught about the Civil War. A lot of polarization. So and throughout our country, I couldn’t really find a starting point where there’s a clear trend from some earlier time to the time in question as an increase in polarization. It seems to be a constant with occasional dips, but it seems to be part of the product itself. So do you mean there has been an increase in polarization or just today, once again, there is too much polarization as has been in the past and the problem has always been there?
Ilya Somin: So there’s always been some degree of polarization. Nonetheless, by just about any measure you want to pick, whether it’s distance between the parties on policy issues or whether it’s how supporters of the two parties feel about the other party, the amount of polarization is higher now than it’s been in at least several decades, really than perhaps throughout the entire time that we’ve been able to measure it with modern survey data.
So, for example, the percentage of people who think the opposing political party is not just wrong but is a menace to America or a threat to democracy, that percentage is much higher than it’s been in the past. If you even look at data on things like, will people be angry if a friend or relative of theirs marries a member of the opposing party? Those numbers are at record highs, around 40% or more. Many more people will say they would be angry or hostile if a member of their family marries a member of the opposing political party than say they would be opposed if a member of their family marries somebody of another religion or another race or pretty much any category that you can name.
So by almost any metric of polarization used by political scientists or experts in other fields, it has been rising for several decades now, and it is likely at a higher point today than it has been at any time during the post-World War II era. We don’t have data of that kind for the Civil War period, so it’s very possible that it was greater then. But if your argument is like, “Well, it’s not that bad because it’s not yet as bad as it was during the Civil War or right before it,” that’s not a great historical comparison. It is higher than it’s been in many decades, perhaps ever in the last 70, 80 years.
The Libertarian Solution: Foot Voting [22:09]
Bob Zadek: You indicated right before I interrupted you, and now I will not anymore, you indicated that some of the ideas were purely libertarian, others were embraced by a large or meaningful non-libertarian audience. Let’s start with the best example in your work and in your finished product, just so the audience appreciates how a libertarian approaches the problem. Pick, if you will, one of the problems you sought to address, how you addressed it, and what made your solution “libertarian,” if you will.
Ilya Somin: So I don’t think any of the proposals in our report are purely libertarian in the sense that nobody but an already committed libertarian can plausibly accept them. We tried to base all of our proposals on sort of more widely shared assumptions that even many non-libertarians can embrace. But it is true that some of our proposals are ones that will be easier to go down for a libertarian than for other people, whereas others of our proposals, I think non-libertarians could accept them just as readily or even more readily than libertarians could.
I would say the part of the report that has the most libertarian flavor in some ways is actually the part that I had the biggest hand in writing, which is the part that deals with foot voting, where we argue that because of the problem of voter ignorance that we mentioned earlier and the problem of excessive centralization of power, what would be desirable is to decentralize more authority to state and local governments and also to the private sector, thereby empowering people to vote with their feet. To, for example, decide what state or local government they want to live in based in part at least on its policies, or even to make choices in the private sector like that, like with private school choice, for instance.
When people make decisions like that, they have much better incentives to be informed. If you’re like most people, you probably spent more time and effort seeking out information the last time you decided what television set to buy than the last time you decided who to vote for for president or governor or any other office. That’s because you know your decision about the TV will actually make a difference. The one you pick is actually going to be the one in your living room. But when you turn it on and you have the misfortune to see the president or some other politician, the chance you can affect who that is or what their policies are going to be is very low.
So foot voting improves the quality of decision-making by giving people better incentives to seek out information. In addition, this kind of expanded foot voting and decentralization, we believe, can help reduce polarization because part of the polarization has occurred—not all, but part of it—is because so much power is concentrated in the federal government and in particular in the hands of one person who’s ever sitting in the White House, that it becomes very scary to have it held by a member of the opposing political party, which if you’re a partisan, you may really hate. And that in turn stimulates partisan conflict and even these kinds of efforts to overturn elections. If things were more decentralized, if people had more opportunities to vote with their feet, there would, I think, be less fear of having the White House or Congress be controlled by your political opponents, and that in turn would ease some of our other problems.
So I think you can accept everything that I just said even if you’re not a libertarian. But if you are a libertarian, I admit it goes down somewhat easier because libertarians already, most libertarians at least, already want to decentralize power for other reasons. And so adding this additional reason to do it is something for them as icing on the cake. On the other hand, if you have reasons why you like a large and powerful federal government as many liberals and conservatives do, then this recommendation will pose some trade-offs for you. Though I would argue that there’s many ways in which we could decentralize power and yet fall far short of some kind of libertarian minimal state or other libertarian utopia. The federal government is so enormously overgrown now that you could probably eliminate as much as half or two-thirds of it and still be very, very far from any kind of, you know, pure libertarian state.
Bob Zadek: Now tell us specifically what guardrails would you add or subtract or change to encourage the ability of people to, in your phrase, vote with their feet? What is the recommendations that you have made as part of you and your team members?
Ilya Somin: Sure. I would say that there’s several categories of things that we have in that part of the report. One I’ve already touched on: limiting and decentralizing more functions of government so that fewer of them would be in the hands of the federal government and more would be either with states or localities or even left to the private sector. Obviously, we don’t have a comprehensive analysis of like every function of government and what level it should be at. That requires going into much more issues than we could here. But at least at the margin, the goal of expanding foot voting and the value of foot voting argues for greater decentralization of power.
Secondly, we would like to break down barriers to foot voting and interstate and other inter-jurisdictional movement. There are a number of them, but the biggest one that’s particularly a problem in your state of California is exclusionary zoning, where in all too many parts of the United States, there are such tight restrictions on the building of new housing that it’s often almost impossible to build new housing, especially new cheap housing, in response to demand. And that literally blocks off many millions of people from moving to places where they could find opportunity, find better education, and so on. That harms those people, it reduces their choice, it also greatly damages the economy, it makes us less productive because people can’t move to places where they’d be more productive.
So effectively, we want to expand the range of choice by decentralization and we also want to break down barriers to mobility. Exclusionary zoning is the biggest one, but there are some others like state-by-state occupational licensing as well. And if we do both of those things, we can greatly expand people’s ability and opportunity to vote with their feet. And in some cases, they can even do so without physically moving or without moving very far, particularly if you can choose between different local governments as well as state governments, or if you can choose in the private sector. For example, if we had more in the way of school choice, you could send your kids to a different school that might be better than your locally assigned public school and yet not necessarily actually, you know, change your address or have to buy a new house or whatnot. And there are many things like that. But those are the basic categories: decentralized power, break down barriers to mobility.
Bob Zadek: I notice you didn’t mention a federal statute which was at one time of questionable constitutionality, which is a national minimum wage. Now, if states were allowed—without a national minimum wage—now, minimum wage itself, whole other topic. So let’s grudgingly, frown on our face, concede minimum wage as a concept is not about to go away, much as we wish it was different. So let’s make that concession. But a national minimum wage, to me, A, makes no economic sense whatsoever, it cannot be justified. But just imagine if there was no national minimum wage and states could and businesses could compete for wages and for workers on a marketplace system rather than have minimum wage laws which collectively operate as sort of federal price fixing.
Ilya Somin: So I generally agree with you, a national minimum wage is a bad idea for a number of reasons, including those you mentioned. At this point, the national minimum wage, which hasn’t been raised in 13 or 14 years, is not actually that high, it’s $7.25 an hour. So it’s probably only a modest constraint on mobility because there are relatively few jobs that would open up that would be below $7.25 an hour. However, there are many people who would like to have a much higher national minimum wage, many people in the Democratic Party in particular would like to raise it as high as $15. If we had that, that would be a much more serious constraint on mobility, it would also put many people out of work. But even the $7.25 minimum wage, it does destroy some jobs and in particular it destroys some jobs in relatively poor states and for workers with relatively weak credentials who are trying to enter the marketplace. So it is somewhat of a problem, albeit the current national minimum wage is probably only a relatively modest obstacle to mobility because it’s not that high right now.
Reforming the Electoral Count Act [29:20]
Bob Zadek: Another topic which all three groups paid some attention to was the system, our electoral system itself, the nuts and bolts, the two-by-fours of our electoral system. You made reference at the start of our show to then-President Trump challenging the process, the electoral process, as being rigged, all those words that he used. But he called into question the process itself, that it was a corrupt or rigged process. You devoted some time, I believe, to the electoral process system, as did the other teams. Tell us your observations and your solution regarding that needed—that area where a different or better guardrail is needed.
Ilya Somin: This is actually a point where there was a lot of agreement between the three teams and even agreement in Congress, which looks like it may be about to do something about this. I think what happened in 2020 revealed a lot of problems with this piece of legislation that probably most Americans had never even heard of before 2020, called the Electoral Count Act of 1887, which was enacted in the wake of the disputed election of 1876.
And there are a number of vague aspects of that legislation which Trump and others tried to exploit in 2020. One is that it is not entirely clear at what point states have to certify their votes—that is to say, like, our state’s electoral votes go to this candidate. And as a result, there were efforts, fortunately they failed, but there were efforts to say like, “Well, we don’t like the popular vote result in our state, so we want to have the state legislature after the fact, you know, create a different slate of electors which was not the one that was chosen.” And this is arguably legal even under the 1887 Act, but it was vague.
So I think that can be fixed, that states under the Constitution, they can allocate their electoral votes as they wish, they have a broad range of options, but they have to set the system by which this is going to be done before election day so that they can’t monkey around after the fact just because they don’t like the result.
A second issue is it’s not entirely clear what happens if a governor or a state secretary of state or some other official in charge of certifying the vote, what if those people refuse to do so, as Trump tried to pressure some Republicans into not doing so in 2020? This also can be fixed and to allow judicial review of those kinds of decisions so that if a state official is acting illegally, judges can review it and strike it down. I think this was permissible before, but it should be made more clear.
And then finally, there is what until 2020 and ‘21 was usually just a formality: there is the issue of Congress’s and the Vice President’s powers to refuse to recognize particular electoral votes. You and your listeners may remember that what precipitated the events of January 6th was that that was the day that Congress was meeting to certify the electoral votes sent to them by the states. And some right-wing Republicans in Congress were saying, “Well, we’re going to refuse to certify the vote from Pennsylvania and some other disputed states.” And Donald Trump was pressuring the Vice President, Mike Pence, to try to on his own determine like, “I, Mike Pence, you know, do not believe that certain electoral votes are properly cast and therefore I, just on my own authority as the VP, am going to refuse them.”
And we need a reform to make it clear that Congress can only refuse to recognize votes for a narrowly specified set of reasons, like some kind of actual, you know, calamity or strong evidence of fraud or the like. And also that the Vice President in fact cannot overturn results on his own authority. I think Mike Pence, to his credit, correctly decided that he didn’t have that authority even under the 1887 Act, but it’s desirable to make that more clear.
And I think if you have these reforms and a few other more technical things that I’ll pass over for now, that greatly reduces the chance of monkeying around with the electoral vote system either by state governments or rogue officials at the state level and the like, or by members of Congress or by the Vice President or anybody else. And you know, I think there are good reasons why you shouldn’t want to do that. Even if you like Trump and the Republican Party, you should recognize that similar shenanigans could easily be used by the Democrats if they got the chance to do so, and we should not want that sort of thing to happen. It’s ridiculous that, you know, in particular the idea that the Vice President, who often is actually a competitor in the election like Pence was or like Al Gore was back in 2000 and 2001 where he was actually the Democratic candidate for the presidency, it’s ridiculous to assert that well, that person should have the right on his or her own authority to overturn, you know, electoral vote counts. Even if you say, “Well, Mike Pence would never do anything bad with that,” do you similarly trust Kamala Harris if you’re a Republican, for instance? And if you’re a Democrat, would you trust a Republican VP? I think the answer is no, and for good reason.
And finally, under the current rules, anytime there is one senator or one member of the House of Representatives who’s willing to challenge any state’s electoral votes, that in itself is enough to trigger a process in Congress and to trigger a vote to potentially reject that. It would be desirable to raise that so it’s not enough to have sort of one rogue ambitious senator like Josh Hawley, who was the ringleader of this stuff on the Republican side. At the very least, you should have to have, you know, some significant percentage of members of Congress who are willing to, you know, start a challenge before you can initiate that.
Political Ignorance and Misinformation [35:15]
Bob Zadek: Earlier in the show, in part of your very first introductory remarks, you mentioned disinformation, information. We then touched on it, but did not elaborate, when you mentioned, quite correctly, as you have in your book, that the typical voter—the word that pops up all the time is the “rational voter”—does not spend a lot of time, and I’ll then add, nor should they, studying issues of complex foreign policy, economic theory, Keynesian versus free market, they should not be—have read Locke’s Second Treatise on Government. So we don’t expect—no rational voter should make a study of civics on a very informed basis. And yet we worry about disinformation. We have in the midst of a debate on to what extent does social media corrupt the process or help the process. So this is an area when the country has not yet found the capital-A answer. What in the view of you and your teammates, how would you describe the problem, or did I do an adequate job? And if so, and if it is a problem, what do you see to be a solution consistent with your values?
Ilya Somin: Sure. So I think you’ve already described some of the problem. One is most voters have very little incentive to be well-informed, not because they’re stupid, but because there’s only a small chance that their vote will make a difference, and they have lots of other things to do with their lives. You know, they have work, they have obligations to their children, they have many other commitments, and therefore realistically most voters devote only a very small amount of time to following political issues.
Closely related to that is the fact that when they do follow those issues, often they have little incentive to do a good job of objectively evaluating the information that they get. Rather, they tend to act in the way that sports fans act. People who are big sports fans, and I’m one of these people myself, they tend to be pretty biased, right? Like any information that reflects well on their favorite team, they love. On the other hand, if it reflects badly on it or reflects well on a rival, like a referee makes a close call that goes against their favorite team, that’s going to make them mad, they’re going to try to reject it and so forth. The people that in my work I refer to as “political fans,” those who follow politics closely, they’re probably even worse than hardcore sports fans in terms of being very biased in the way they evaluate information.
And this in turn makes people more vulnerable to disinformation or deception and the like, not just on social media but elsewhere. The problem long predates social media. If you don’t know much about how government policy works, you’re more easily fooled than if you know a lot. And in particular, if you have biases which you indulge, such as you like any information that makes your favorite party or your favorite politician look good and the opposition look bad, there are certain kinds of conspiracy theories and misinformation that will, you know, that you will like. It’s not an accident that Donald Trump’s big lie about the 2020 election, for the most part, it’s the people who accept it are overwhelmingly partisan Republicans. On the other hand, if you look a few years ago, the people who thought that George W. Bush deliberately allowed the 9/11 attack to happen so that he or some special interest could gain, those people were mostly partisan Democrats, right? That one of these conspiracy theories and deceptions appealed to one side of the political spectrum, the other appealed to the other.
So what can we do about it? There are some people, including the authors of the progressive report—I know I believe you’re going to talk to one of them in a later interview—they argue that maybe the government can try to restrict the flow of misinformation. We in our report counsel against this. We do not believe the government can be trusted to do this. To the contrary, they would be very tempted to try to use any information censoring system in a very partisan sort of a way. And in addition, I think it’s very doubtful if they can actually catch up to all of the flow of this disinformation unless we had a near-totalitarian state.
But as I suggested earlier, I think this problem can be mitigated to some degree by empowering people to make more decisions by voting with their feet and fewer at the ballot box. When you vote with your feet, you can still be make mistakes, you can still be influenced by ignorance—it’s not perfect—but you have much more incentive to both seek out information and be objective in evaluating it. If somebody gives you a conspiracy theory about the school that you’re sending your kids to or considering sending them to, or some product you want to buy or where you want to live, you’re going to in general be more careful and skeptical in evaluating it than if someone gives you a conspiracy theory about some politician that you might vote for or against, because you know that your decision about the foot voting situation is actually one that’s more likely to make a difference, so you will try harder in most cases to control your impulses and to reduce your biases.
Bob Zadek: It sounds like it’s a libertarian abstention. That is to say, foot voting, so that is a cure for the bad result of an election in your opinion. But you don’t—while recognizing that disinformation does exist, I’m pretty sure I heard you say that, yes, of course it exists, and perhaps it exists, although you weren’t so clear, more than in before simply because the delivery devices are better now than they used to be than broadsheets at the time of the founding era. But it sounds like there’s no structural other than “go somewhere else, a different state,” there’s no structural solution that you see to either reduce the amount of disinformation or counter the ill effects of it.
Ilya Somin: So I don’t think we can reduce the amount of it very much, but we can certainly counter the ill effects of it by having more decisions made in frameworks where people have better incentives to seek out information, also evaluate it objectively, and that means making more decisions through foot voting and fewer through ballot box voting. And those that still remain in the ballot box voting system, at the margin things might be a little bit better because if there are fewer issues decided that way, then voter attention is not spread out over as many different matters, and as a result, voters at the margin could do at least a somewhat better job of judging those things that still remain under the control of ballot box voting.
But here speaking for myself rather than for the other members of the team necessarily, I’m somewhat skeptical of claims that disinformation or political ignorance is much worse in recent years than it was historically. There were lots of previous historical periods where, you know, it was really awful. And I’m also skeptical of claims that we can somehow stop the flow of disinformation or make voters much better informed than they currently are. On the other hand, we can create a situation where voters make more decisions in frameworks where they have better incentives.
The Electoral College and Original Intent [41:40]
Bob Zadek: We have time for maybe one more topic. You had mentioned earlier in your remarks, you made some reference to the Electoral College system. To remind our audience, as designed, voters did not vote for president. They voted for electors who would vote for president. In effect, they outsourced the selection of the president to presumably those who are wiser and spent more time studying the issues than the voter. We discussed how little time the average voter has, so they simply outsourced it. That system didn’t last very long. Any comments on the Electoral College system now, where states are given a certain number of electors and therefore we are one step removed from a national popular vote?
Ilya Somin: So the Electoral College system has never worked the way some of the founding fathers thought that it would, which is the way that you described, where their idea was that the voters might not really know who would make a good president, but they could choose better-informed members of their community and those better-informed members would do the actual job of choosing the president.
From the very first seriously contested presidential election in 1796 on to the present, it’s never worked that way. In reality, while even today technically you don’t vote for Biden for president or Trump for president, you vote for a Republican Party elector or a Democratic elector, but in reality, almost nobody knows who those electors are, and it’s very clear that what you’re actually doing is voting for a preferred party or candidate. That was true even back in 1796, when it was Adams versus Thomas Jefferson. Almost everyone who voted in that election probably was like, “I’m not voting for Joe Schmo, the Federalist Party elector for Delaware or whatever,” if you asked them, “I’m voting for John Adams or Jefferson.”
So this system has never worked the way it was supposed to. It has always essentially been a system where with rare exceptions the electors themselves are sort of ciphers chosen by their political parties and chosen deliberately so that the person will be almost certain to cast their electoral vote for the candidate of their party rather than go rogue and make an independent choice. In the entire history of the Electoral College, there’ve only been a relative handful of examples where somebody did go rogue, and it has never actually changed the outcome of an election.
So this system has never worked the way it was intended. I personally, speaking just for myself, I think very little would be lost if we just eliminated the electors themselves and just said, “If you win the popular vote in a given state, you get all of that state’s electoral votes,” or you get some proportion of them, or there are other approaches. I even would be fine—this would require a constitutional amendment—but I even would be fine with just saying, “Let’s get rid of the Electoral College entirely and let’s have one of several possible alternative systems, like a French-style two-round election, for example.”
Bob Zadek: I’ll close on a positive note, I think, Ilya. The three teams have submitted their reports. The other two teams will have been gracious enough to agree to be on my show. We started discussing polarization. I’d like to end with a question for our audience and for you. In your opinion, do the differences in the reports show the same level of polarization, or does it show those who have given the most thought to these important topics seem to be closer than the population as a whole? And I hope I know the answer, and I hope the answer will allow us to end on a positive note. Please, your thoughts.
Ilya Somin: I think overall there is less polarization between the three reports than there is in the broader public. However, the people who wrote the reports probably are not representative examples of—not only they’re not representative examples of the general population, but in some respects they may not be fully representative of sort of their three different political factions. That said, there are clearly some issues where there’s a lot of consensus among experts. The most obvious one is the issue of Electoral Count Act reform, which we talked about earlier. And I think there’s also broader consensus that political ignorance is a very serious problem, albeit there’s disagreement about how to address it. There used to be more experts who thought political ignorance is no big deal, actually the voters are doing a great job making decisions. There are still some adherents of that view, but there are many fewer, at least among experts, than there used to be before.
Bob Zadek: I commend our audience to read the entire report, indeed all three reports. And unfortunately, we didn’t have time to cover one more important issue—we’ll have to do it on another show—which is jury reform, plea bargaining, a very big deal, and the almost total disappearance of criminal jury trials in America. A serious problem. Ilya, we have too many problems, not enough time. I’m sorry we didn’t get to it. Bob Zadek thanking Ilya Somin, professor of law at George Mason University, member of the libertarian team to confront the difficult problem of guardrails in democracy. Do we need more? Do we have too many? Ilya, thank you so much for your time and most importantly, thank you for all of the hours you spent on the project. It was well worth it. Thank you so much.
Ilya Somin: Thank you for having me.