“Guardrails of Democracy” is a project of the National Constitution Center, which Bob Zadek described as the only nonprofit organization funded by Congress for the sole and exclusive purpose of increasing awareness and understanding of the Constitution. The project sought to understand what is not working in the American system of democracy — which guardrails, the phrase the Center chose, have failed or ought to be put in place but are not. A progressive group, a conservative group and a libertarian group analyzed the question independently and produced separate sets of solutions. Zadek devoted episodes of The Bob Zadek Show to a team member from each group; the libertarian team’s proposals were presented by Ilya Somin, a professor of law at George Mason University, in two episodes. The Libertarian Dream Team - Ilya Somin (2022) 3 Libertarian Ideas to Strengthen Democracy (2022)
The project and the libertarian team
Zadek introduced the project by noting that there is little dispute that elements of the American system of government are not working well, and that the three teams produced answers that were similar in some ways but quite different in others. Somin said he did not work for the National Constitution Center and could not definitively speak to its motives, but that he believed the goal was to recognize the serious problems the democratic system in the United States has had over the last several years, particularly but not exclusively during the 2020 election and its aftermath. The Center, he said, convened teams of specialists from different ideological viewpoints to think about the problems and the solutions. 3 Libertarian Ideas to Strengthen Democracy (2022)
Somin’s fellow members on the libertarian team were Walter Olson and Clark Neily, both of the Cato Institute. Zadek described Somin as focusing extensively on constitutional law, property law, and the study of everyday people in the activity of representative governance, and cited Somin’s book Free to Move: Foot Voting, Migration, and Political Freedom. 3 Libertarian Ideas to Strengthen Democracy (2022)
The three problems
Somin framed the libertarian report around three problems that he said had come to a head in recent years, though most had previous origins. The first was efforts to overturn elections and “monkey around with them,” as he put it, referring to Trump and his supporters in the last election, while noting there were precursors to what Trump did in previous elections. The second was growing polarization and hostility between the parties and their supporters, which he said was part of the reason Trump was able to attempt what he did. The third was the growing sense, and in some ways the reality, that it is very difficult for individual voters — ordinary people as opposed to political elites — to have a meaningful say in the policies they live under. The Libertarian Dream Team - Ilya Somin (2022)
On the third problem, Somin gave a figure: for any one voter, the chance 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. Closely related, he said, is that a high percentage of the time most voters have very little idea of the issues they are voting on and therefore often make poor decisions. 3 Libertarian Ideas to Strengthen Democracy (2022)
Electoral College reform and the Electoral Count Act
The first part of the libertarian report, Somin said, proposed specific solutions to plug holes revealed in the Electoral College system and the way Electoral College votes are counted and certified. Many of these, he said, are embodied in the Electoral Count Reform Act, which he described as likely to pass Congress soon — the one part of the report that might actually be fixed in the near future. The Libertarian Dream Team - Ilya Somin (2022)
Foot voting, decentralization and the jury system
Somin said the report’s second set of recommendations dealt with the deeper structural problems of political ignorance and polarization. The fundamental problem with ignorance, he said, is that most voters have very little incentive to become well-informed because the chance their vote will make a difference is extremely low; unless a person actually enjoys following political issues, there is little incentive to learn about them just to be a better voter. The Libertarian Dream Team - Ilya Somin (2022)
The report contains a section devoted to expanding people’s opportunities to engage in other kinds of decision-making mechanisms, such as voting with your feet, and in some ways also the jury system. Somin said the jury system has some commonalities with democracy but is also different. He described a second section of the report as devoted to showing how people can be empowered to vote with their feet about policies in the federal system, and also by expanding opportunities for decisions in the private sector — which, he said, is often more empowering and leads to better decision-making than traditional ballot box voting. A third section outlined ways to increase opportunities to participate in governance, particularly by strengthening the jury system, which he said the founding fathers and others like Alexis de Tocqueville regarded as a central mechanism by which ordinary people can participate in government, but which has to a large extent been lost or at least degraded over the last several decades. 3 Libertarian Ideas to Strengthen Democracy (2022)
Is there too much democracy?
Zadek pressed Somin on whether the project assumed that more democracy is always better. He cited the 17th Amendment as an example of increased democracy, when power was given to the voting public at large rather than to a select group, and the disappearance of an effective Electoral College as another movement toward more popular democracy. He asked whether the question of whether the country has too much democracy was off the table. The Libertarian Dream Team - Ilya Somin (2022)
Somin answered that it was not. He said he recognizes, and thinks the report also recognizes in some ways, that it is possible to try to do too much through the democratic process, and that in some ways Americans do. He pointed to the report’s section on expanding opportunities for other kinds of decision-making, such as voting with your feet and in some ways the jury system. In his view, if you try to do too much through a democratic process — particularly in a very centralized way, with the federal government having more and more power — that can be dysfunctional and problematic and can even help undermine democracy itself. He said it is certainly not his assumption, and probably not that of his co-authors, that there can never be too much democracy and that more is always better; there is somewhere an optimal amount of democracy, though it is hard to know exactly what point that is. The Libertarian Dream Team - Ilya Somin (2022)
Measuring polarization
Zadek challenged Somin’s use of the phrase “increased polarization,” asking increased from when to when. He recalled the Vietnam War era as a time of polarization, with public figures assassinated and cities burned, and said he could not find a clear starting point showing a trend of increase; polarization seemed to him a constant with occasional dips. 3 Libertarian Ideas to Strengthen Democracy (2022)
Somin replied that there has always been some degree of polarization, but that by just about any measure — the distance between the parties on policy issues, or how supporters of the two parties feel about the other party — polarization is higher now than in at least several decades, perhaps throughout the entire time it has been measurable with modern survey data. He cited the percentage of people who think the opposing party is not just wrong but a menace to America or a threat to democracy, which he said is much higher than in the past, and data on whether people would be angry if a friend or relative married a member of the opposing party, which he said are at record highs, around 40% or more. Many more people, he said, would say they would be angry or hostile if a family member married a member of the opposing political party than would say they were opposed if the family member married someone of another religion or another race. By almost any metric used by political scientists, he said, polarization has been rising for several decades and is likely at a higher point than at any time during the post-World War II era. He acknowledged that data of that kind does not exist for the Civil War period and that it is possible polarization was greater then, but said that arguing it is not that bad because it is not yet as bad as the Civil War is not a great historical comparison. The Libertarian Dream Team - Ilya Somin (2022)
Across episodes: the two Somin episodes
The two episodes present the same guest, Ilya Somin, making the same case for the libertarian team’s report, and the excerpts show no development between them: both open with Zadek’s introduction of the National Constitution Center and the three ideological teams, both have Somin list the same three problems (election subversion, polarization, and voters’ lack of meaningful say), and both cover the Electoral Count Reform Act and the report’s sections on foot voting and the jury system. The 2022-08-15 episode adds detail on the project’s origins and the identity of Somin’s co-authors, Walter Olson and Clark Neily of the Cato Institute, and it is the episode in which Zadek’s challenge on “increased polarization” and Somin’s survey-data response appear. The Libertarian Dream Team - Ilya Somin (2022) 3 Libertarian Ideas to Strengthen Democracy (2022)
What the sources do not cover
The excerpts do not state what the progressive and conservative teams proposed, beyond Zadek’s statement that a team member from each would appear in upcoming weeks. They do not give the contents of the Electoral Count Reform Act or the specific holes in the Electoral College system the report sought to plug, and they do not describe the report’s recommendations on zoning, the minimum wage or federalism beyond the topic lists attached to the episodes. The excerpts also break off before the discussion reaches the report’s foot-voting section in detail, so the specific mechanics of foot voting as a remedy are not stated here.