Enhancing Trust in Democracy
2022-08-22 · Guest: Ned Foley (Constitutional Law Professor at OSU) · 52:45
Restoring Guardrails of Democracy and Election Law
Bob Zadek interviews Ned Foley, a constitutional law professor and member of the “Progressive Team” for the National Constitution Center’s project on restoring the guardrails of democracy. They discuss the erosion of the norm of accepting election results, the structural flaws in the U.S. electoral system—specifically gerrymandering and the lack of competitive districts—and potential reforms like proportional representation and Electoral College changes.
Topics: Election Law, Constitutional Law, Democracy, Gerrymandering, Electoral College, Section 230, National Constitution Center
Speakers: Bob Zadek, Ned Foley
Introduction to the Guardrails Project [00:28]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the longest-running libertarian radio show in all of radioland. Thank you so much for giving us an hour of your very valuable time this morning or this afternoon, whenever you happen to be listening. We will certainly make good use of your time and hope you have spent it in a very valuable way.
Several, a short while ago, the National Constitution Center, which has Jeffrey Rosen, the executive director or president—the top man—as Jeffrey Rosen is always delighted to remind us, it is the only institution funded by Congress in order to enhance the understanding and appreciation of the Constitution. And what a wonderful job it does. Don’t be discouraged by the fact that it’s funded by Congress; it’s not tainted by Congress. Congress has stepped out of the way and let Jeffrey Rosen and his staff do a wonderful job bringing to us a living, active, interactive Constitution. They are located in Philadelphia, Pennsylvania. It is a must-stop if you visit the city where our country was created.
Well, the National Constitution Center initiated a project. The National Constitution Center was, I suppose, worried by what appears to be a breakdown in our democratic system. Big words, broad words; we’ll drill down. And it commissioned three teams. Teams sound competitive; they are not. Three teams: a libertarian team, a progressive team, and a conservative team, in order to meet together and decide what is wrong, what is breaking down in our system of democracy. And once you identify if there is a problem and what it is, what in your progressive, libertarian, or conservative view, what would be the solutions that come to mind in order to fix whatever problems you have identified?
It is a fascinating project. The work product is even better than the project itself. The reports done by the three teams are available at the website of the National Constitution Center. And it is not a question, even though the word “team” is used, of which report is the best. The answer is it is a three-way tie. And we have collectively available to all of us the collective wisdom of the three teams, so we can pick and choose which ones of the group, which ideas make more sense than the others, or more likely all of them make sense but presented from a different perspective.
Today, I’d like to welcome to the show one of the members of the progressive team, Ned Foley. Ned holds the Ebersold Chair in Constitutional Law at OSU, Ohio State University, and he directs the election law program. Election law—well, if you needed somebody to help us understand what went wrong when we have a sitting president questioning the election results, when we have a storming the Capitol to upset the election process, when we have the questioning of the balloting process, when we have allegedly people not being given access to vote or denied the access to vote, or too many people voting, or the wrong people voting, or too few people voting—voting process, election law, if you will, is at the center of it all. So we have probably a guest with the most important view of what is going wrong with our electoral system, comma, if anything, and if something is going wrong, how we fix it.
Ned, I hope I haven’t oversold your presentation. I maybe have mismanaged expectations on the high side. Apologies, but the audience will agree with me about 50 minutes from now that if anything, I understated what you bring to this discussion. So first of all, thank you so much for giving us an hour of your time and for being a guest on my show.
Ned Foley: Well, thanks so much for having me, and I was a little worried there that the expectation setting might be just a tad high, but we’ll do our best.
The Norm of Accepting Defeat [03:45]
Bob Zadek: Now, the subject, your assignment as a team member in the progressive team was to suggest guardrails to democracy. Now, guardrails exist to prevent people from going astray. We have guardrails on the roads so we don’t drive into the pasture and to keep us on track. So metaphors that are accidentally, perhaps, quite apt. So my first question is, as you understood the assignment—of course you had to understand it before you agreed to dedicate some valuable time of yours to identifying and fixing the problem—so just give us your thoughts as to what are the major indications to you that our democracy was in need at this time of guardrails? What specifically showed us that without guardrails, we’re going to leave the road?
Ned Foley: Yeah, I think guardrails is useful. And the basic guardrail or premise that we had that’s under threat at the moment is the willingness to accept defeat when defeat happens. Nobody wants to lose an election. You invest a lot of money and time and effort on behalf of yourself as a candidate and your party and your voters. But every election has to have a loser. You know, there can only be one winner, and other candidates, you know, have to accept defeat. And so the unwillingness to accept a demonstrable defeat is, I think, the single most problem that we confront.
Bob Zadek: But that’s not a collective problem. That’s not a problem at the bottom, at the voter level, is it? That’s a problem of the character and the orientation of the candidate. It would be hard to fix that problem, willingness to accept defeat, unless you were careful to select candidates who didn’t care that much if they won or lost, or if they maybe even believed that they lost—a lot of them probably should be. So tell us a little bit more about whether or not you are focusing on the quality of the candidates or something in the process, in the operation of democracy that we’re doing wrong. And when you do so, I’ll give you an invitation to go beyond that a little bit and help us understand whether you are addressing a problem that we’ve had since the founding—that is, the founders got some things a little bit wrong in the structure of our government—or whether the problem is the structure is fine, but somehow it went astray for identifiable reasons.
The Paranoid Style of American Politics [06:45]
Ned Foley: Yeah, I’m glad you asked it that way. And I am going to push back a little bit on the notion that this problem that I’ve identified is only a candidate problem. If it were only a candidate problem, I do think the rest of the political system, other, you know, professional politicians and the voters would police it and basically say, you know, “You renegade candidate who refuses to accept defeat, you’re wrong and you’re now irrelevant because your defeat is obvious.”
The problem that we saw surface, you know, most acutely in the presidential election of 2020, but it relates to other underlying problems that we’ll get to, is that it wasn’t just one candidate who insisted that he won when he didn’t. It was other members of his own political party willing to file amicus briefs that had no basis trying to get the Supreme Court to overturn the result. Now, it wasn’t successful, but the fact that you had, you know, many members of the US House of Representatives willing to sign on to these claims that had no basis, as his own Attorney General told him. Then you had those same members of the House of Representatives willing to repudiate the electoral votes that were predicated on the certified outcome of the popular vote in the states. The fact that you had some senators, not as many, but some senators doing the same. And then to this day, the fact that public opinion polls are telling us that upwards of 70% of self-identified Republican voters believe that the election was subverted and stolen from President Trump.
And so, in my judgment, we kind of have a problem or a pathology in our system that is analogous to the McCarthy era Red Scare. And this is new. And you asked, “How does this relate to the founding?” You know, we’ve had contestation over election outcomes since James Madison and the founders. We’ve had, you know, seriously disputed elections. We could talk about, like, the Hayes-Tilden election of 1876 in the midst of Reconstruction. Based on the research that I’ve done for a book called Ballot Battles, which is the history of disputed elections in the United States, I’m unaware of anything that combines two things that are going on right now.
So one strand of American history is what a famous historian called Richard Hofstadter called the “paranoid style of American politics.” And he wrote a book about this; he coined that phrase to refer to McCarthyism and the Red Scare. And, you know, I’m sure listeners have a sense of what that was. That was a fabricated alarmism. I mean, yes, there might have been a need to be concerned about communism in the 1950s during the Cold War, but what was dangerous about McCarthyism was claiming that “I have a number of—I have a list of communists in the State Department” when that list was made up. It was a demagoguery that was not based on reality, but it was successful for four years because of the charismatic quality of Senator McCarthy and the connection that he had with his base and the unwillingness of other professional politicians who realized that he was a huckster and, you know, and just a charlatan, but they refused to confront him until, you know, four years later. I mean, we could talk about the dynamics of that.
And what Hofstadter wrote about was to say that this phenomenon was not new. It pops up from time to time in American history: the Salem witch trials, you know, in colonial times, the Know-Nothing movement in the 19th century, other versions of this. What I would like to bring to the table for purposes of the Guardrails Project and our discussion is the fact that, to my knowledge, that kind of McCarthyism-like behavior has never been applied to counting votes before. All the vote counting disputes, whether hanging chads in Bush v. Gore or any other episode, were kind of fact-based and evidence-based, and there were genuine disputes over who really won. And so, but what’s new and what I think is particularly dangerous given the centrality of voting to our self-government is to combine this kind of McCarthyism-like attack that’s not based in reality and to do it with respect to counting votes. That, I think, is the danger that we have. And so it involves—it’s a problem that combines demagogues like McCarthy or Trump and the charisma that they have with their base. But it’s only a problem because of that connection that demagoguery works between the charismatic politician and the base. If the base ignored the charlatan, it would be irrelevant. But it’s because the charlatan has a connection to the base that it’s so dangerous.
Bob Zadek: We’re going to hopefully have time to discuss another aspect which you have focused on a bit in your report, which is misinformation, disinformation—I never know which is the more accurate predicate, but we know what we’re talking about. The fact is, it was referred to often as the political ignorance of the voters, which is maybe, if you drill down deep enough, that’s where a lot of the problem goes. We’ll get to that later.
But as you make such an interesting point when you mention, point out, assert that the very system itself, counting votes—it’s as basic as it gets—if the system is challenged, then there’s nothing left. Because if you can’t—if you have the right, if it’s fair game to attack the system itself—“Hey, you thought the system was working? It doesn’t. It’s not an indication of who won the election”—then it gets really frightening. And I say to myself, if I were to set about weakening or destroying our country, if I can convince the public of that, I’ve done it, much more than with armaments. And indeed, there’s been many suggestions—I don’t know if they’re true—that in fact that disinformation in general and specifically focused on the electoral process is kind of, in a macabre way, it’s genius because it seems so easy to do to put into people’s minds questioning the system. Questioning the system, then they have no faith, then nobody is really the true elected officials, and democracy has been destroyed.
Structural Changes and the Madisonian Premise [10:45]
Bob Zadek: So I think you couldn’t be more right. Now, in your report, and I see, I’m sure, a lot of your work product because of your deep knowledge of the process, in your report you mention structural changes that make sense. It’s almost not challengeable. But in studying the changes you make, like any discussion of change, you can’t avoid focusing on the problem you’re trying to address and then you offer the change.
Now, I’m going to give you a bit of a free pass. You mentioned earlier the election of 1876. No coincidence, the Electoral Count Act was the result of that election. And the Electoral Count Act, which has been all over the news for the past year or so, not accidentally, and it’s a statute that goes back to 1876 or 1877, if I’m not mistaken. I’d like to put aside for the minute the discussion of that act—never worked, doesn’t work, not well-written—and only because everybody agrees that it has to be changed. It sort of doesn’t make much sense, and there seems to be a movement to have it changed. So you and I don’t have to persuade anybody. Sort of, that’s done, and we think the country is going in the right direction at least on that somewhat modest change.
But let’s go beyond, and I’m just saying we have other stuff to talk about, so let’s put that aside for the minute. It’s kind of too easy. And let’s discuss some of the other more subtle but really important changes in the electoral process that you would recommend, the effect of which would be to increase confidence of Americans that somebody really did win if the process was honored without dishonesty.
Ned Foley: Yeah, no, thank you for that. And this, I think, does go back to your point about how we want to compare where we are now with respect to the founding. And so I think a useful premise for this conversation is to start where the founders did, especially James Madison, who’s more than anybody else responsible for the Constitution and wrote in part the Federalist Papers. And from my perspective, you know, the genius of the Madisonian premise of our whole system, you know, is his phrase “ambition must counteract ambition,” right? I mean, you have government precisely because, as he put it, you know, “men are not angels.” We would, you know, say “humans are not angels.” And so…
Bob Zadek: If all men were angels, we wouldn’t need laws.
Ned Foley: Exactly. And so we have to acknowledge that politicians, like humans, are motivated by self-interest. I think a full understanding of the Madisonian concept is there has to be adequate virtue to run a democracy or a republic, because if there’s zero virtue, it doesn’t matter what your rules and institutions and structures are; it’s just going to be a Hobbesian, you know, dog-eat-dog kind of situation. So we have to hope that although humans are not angels, they’re also not devils completely, and so we have to take human nature as it is and create institutions that will somehow achieve as close as possible collective public interest given the natural self-interest of each one of us.
And I think that basic premise is the right approach to designing institutions. The problem is our—is we’re in disequilibrium. I mean, we’ve never been perfectly aligned in terms of our institutions and these premises because Madison hoped he could create a Constitution without any political parties at all, and that quickly didn’t happen, and he realized that, and so we’ve had to make some adjustments. I think what’s happening now is the degree of disequilibrium is even greater for a variety of reasons. It may have to do with, you know, social media and cultural changes; it’s a complicated process. But I think if we want to try to get back to equilibrium, if you will—in other words, if we accept the fact that we have to design a system for who we are as human beings—then there’s kind of two structural features that I think we should focus on to improve the situation.
The Problem of Plurality vs. Majority [13:50]
Ned Foley: One has to do with the vote counting process itself and the fact that we’ve got this problem of election denialism that people talk about and this fear that results are not trustworthy. And so we have to think about our chain of custody rules, our ballot security rules and stuff to maximize the degree of trust. And that may be true even if the reasons for distrust are not valid—it’s again, it’s disinformation that may have fomented the distrust, but the distrust is important and significant enough and dangerous enough that we’ve got to address it. So, you know, the Electoral Count Act reform that, as you say, we’ve now got kind of bipartisan consensus that we need to do, that’s a component of the technical rules that we have for counting votes and certifying results that we have to shore up to deal with the trust deficit.
But the other structural reform that I think is just as important and is not getting enough attention, and I think your question alluded to this, is it is actually a complicated mathematical problem to how you take a set of disparate voter preferences in a society and get an election result. We’re not really taught very well in grade school about this, which is too bad because I think as a public we’d have a better self-understanding of what our system is. We sort of think, “Oh, everybody casts votes and you just count them, and if you can trust the count, you’re done with it.” It turns out that as long as there are more than two options, figuring out what a majority wants is really tricky.
And of course, our elections exist within a constitutional framework. This Guardrails Project is a project, as you said, of the National Constitution Center. So I think when we talk about elections, we need to talk about them in an overall system that has a Bill of Rights that protects free speech and due process and other fundamental rights in the Bill of Rights. The concept of limited government, whatever you think it means, is part of our constitutional legacy. And we have a judicial review and a court that protects those Bill of Rights. But nonetheless, the Bill of Rights constrains democracy; it doesn’t constrain autocracy or tyranny. We want both self-government as our form of government and we want limited government as our form of government, I think, is our constitutional premise.
And so, putting aside the Bill of Rights constraints for the moment, it’s like, so how are we going to do majority rule? Insofar as we empower government to enact laws and make laws, how do we want that to be self-government? And it turns out that if there’s two choices in front of an electorate, the choice that gets the most votes is definitionally a majority, right? If there are only two options, “more” means a majority. But if there are three or more options, then “more” could be what is called a plurality, right? It means more than any of the other options, but it might not be a majority. Well, what do we do about that? What if it turns out that the plurality—there are three options, A, B, and C, and let’s say A gets a plurality with somewhere between 35 and 40%, so not 50% or more to be a majority, but it’s more than what B and C get. But suppose the advocates of B and C really don’t like A. So actually a majority of voters would vote against A if it were A versus B or A versus C. So A would lose any two-way choice, but A is the plurality in a three-way choice.
You know, you could visualize this on a blackboard with some numbers; we’re doing a radio podcast, hard to do, but I hope I simplified it to the point where people can understand conceptually. All right, in terms of self-government, what do we do? We’ve tried as our society to pretend that we have only two parties to try to navigate our electoral process into just two alternatives, you know, donkey and elephant, red versus blue. But, you know, the Libertarian Party exists, the Green Party exists. We actually are quite uncertain as a society about our own electoral system. And I think we’re not going to navigate our difficult terrain and get to a better place until we confront this basic structural issue.
And if I can just make one more point and then we can open this up. It turns out that the same time that Madison was writing our own Constitution and kind of laying the foundations for our system, there were other thinkers in this Enlightenment era of the 18th century across the ocean, particularly in France, who were also thinking about these issues but were a little bit more sophisticated mathematically than we were and give us some insight that it would be great to reintroduce into our own constitutional tradition, but we just didn’t quite do it at the time because, you know, we weren’t aware of what was being written in France almost simultaneously to the writing of our Constitution. And so I think we’ve got some work to do to build new structures that would better serve our own Madisonian premise.
Bob Zadek: It sounds like I have an ally in my campaign to convert us to a parliamentary system. You describe, I think, pretty much how groups of somewhat disparate leaders can get together and can form—and the word always appears—coalition. You are looking for a coalition which in its components have a minority, but collectively they’re a majority, and therefore they have credibility and they have a larger following. I have always looked with envy at the parliamentary system. I often have guests on the show who are from Canada, occasionally from the UK, and I have to remind myself to stay on message on the show and not digress to “Let’s talk about the parliamentary system and how wonderful it is and how it works.” And I think in hearing you speak, it sounds like, without any labels, that’s where you are going.
I’ll just offer that observation, that the Madison’s view of factions offsetting factions and there could not be any tyranny of the majority because every time there was an issue, different members, different component parts would ally themselves with one another only for the purpose of one issue being resolved, and then the coalition dissolves until we see what the next issue is. And therefore there isn’t any dominant class generation after generation. So Madison envisioned only in his fondness for factions offsetting each other, he was describing a parliamentary system, which he understood because England was a parliamentary system. And whether he knew it or not, he was just talking about, longingly, about a parliamentary system, but we never got anywhere and certainly was obviously no structure for it. So I just mention that in passing.
Gerrymandering and Competitive Districts [18:30]
Bob Zadek: And so what would you do? Here we have, here is the system we have. The Constitution Center has said, “Okay guys, you guys spend all your time thinking about this hard issue. Help me fix it, or help our voters fix it, help our members fix it.” So is there some specific areas where we’re just getting it wrong and where hopefully the pressure of leaving the road, to stay with the metaphor of guardrail, the driving off into the pasture and off the road, where that can be controlled somewhat? Is it simply the voters being more thoughtful? That’s a cop-out because that’s not going to happen. And is it have more virtuous leaders? Forget it, that’s not going to happen, you don’t get to say that, Ned, because that’s just hiding from the issue. So help us get into your head and as you’re sitting here drafting some new rules or changing some rules, what comes to mind that we can sort of put our voting collective attention on and try to change?
Ned Foley: Yeah, great. So I’m really glad you made that point about the parliamentary systems because I share that and I think that’s—that should be our starting point. Now, you know, if I could wave a magic wand, I might want to replace our system with the kind of thing that Canada has or Britain has, but not going to happen because amending the Constitution is so difficult. So I think we have to ask what can we do within our system that has a presidency, not just a Congress, and has a Senate that is structured very differently from the House of Representatives.
But let’s start with the House of Representatives because that’s the part of our system that is most like a parliamentary system. And I think the first thing structurally we need to do with respect to that is address the problem of gerrymandering, which I think is fairly well known. This is self-interested politicians manipulating the boundaries to protect themselves as much as they can from voters, you know, kicking them out of office when voters change their minds. And I think that’s a problem in and of itself, but I also think it creates a cultural environment where politicians think they can manipulate any kind of rule to hold on to power. Even though January 6th and the kind of refusal to count electoral votes that some people wanted to do isn’t an act of gerrymandering per se, I think it is a product of gerrymandering, both in terms of who happens to inhabit the seats in the House who engage in that election denialism or election subversion and also in the mindset that subversion is what we do to hold power.
So how do we get rid of gerrymandering? There are a bunch of ideas, but what our team put into the document and what I think is worthy to think about is I think we could move to a system of what I call self-districting, which is closer to what other parliamentary systems use for proportional representation, but what might be a form of that would appeal to Americans who might be nervous about how people in Europe structure their politics. And also, I think Americans like the idea of self-government, right? We like… and so I think if we were told we could actually draw congressional districts by giving voters themselves the power to identify what district they want to be on. Each citizen can say, “I want to sign up to be in this district, not that district. I don’t want politicians to choose my district and manipulate the boundaries. Let me choose what district I’m in.” I think that’s worth considering.
And so that’s one idea that’s put out there on the table to make the House of Representatives a more representative body. Because the thing that’s so dangerous about gerrymandering right now is how uncompetitive it makes congressional races. If you use competitiveness as a measurement, and political scientists can do this, we have lost competitive districts acutely from decade to decade with the most recent round of redistricting, you know, in a particularly acute loss of competitiveness. That means the part of our government that was supposed to be most responsive to the changing views of the voters because they look at new information and say, “We want lower taxes, not higher taxes,” or “We want more climate change” or whatever it is, right? The House of Representatives is supposed to be most directly responsive. And it is the least responsive because of the loss of competitive districts.
Bob Zadek: And that means that representatives are not representative, to use that word again, because they don’t live in fear of being punished at the ballot. And Ned, you and I have just become—I’m going to scare you—interchangeable. Because I have, and indeed on my show, I presented my gerrymandering cure, which was almost identical to what you just said. No one has adopted it yet, nor do I get a lot of emails on point, but I still read my emails every morning. So that was just a comment on how interesting it is that your team and many others before your team actually met, and at least one other human being focused on eliminating physical districts, at least designed by politicians, as a cure for, I agree with you, it is as serious as a problem can get because it breaks the link between voter and representative. And it leaves—that link is manufactured. And therefore no one in Congress—I think 96% of the seats are uncompetitive through gerrymandering—therefore it’s fake. It’s fake democracy. So if anything cries out for the fixing of democracy, you’re exactly right. That’s it. That’s the weakest—that’s the least democratic example in the most allegedly democratic part of our government. It is the only—it was at the founding the only part of government that was directly elected. The Senate wasn’t, the President wasn’t, and then the judiciary. So it was the only part. And there it is, it’s got taken away from us. So thank you, that’s a perfect cure for an understated problem. And it’s only understated because it comes up every 10 years when who gets elected governor because the governors control the legislature and the legislature controls the districting. So every time we have a new census, people talk about gerrymandering for about 90 days and they forget about it again for another 10 years.
Ned Foley: So I’m glad you put your proposal out there. And I do think there’s similarities between it and the one that I was advocating. You know, the other thing you could do that sort of gets at this point, the requirement to have districts is not in the Constitution. That’s actually an act of Congress that was first adopted, I think, in 1842. So it is true that different states have different numbers of congressional seats. Wyoming only has one. We’ve some of us have been looking at the Wyoming single seat in Congress that had a primary campaign recently. California, I do think has 55, like you mentioned. Other states have different numbers depending on population. And you have to allocate seats to each state based on population. But in the old days, some states chose, before Congress took this away, to have what are called statewide or at-large elections for each of their House seats. So in New Jersey, back in the 1830s, I think New Jersey might have had six or seven seats in the House of Representatives, and all of the representatives were elected statewide, not on the basis of district. So you don’t have any gerrymandering problem. Congress, for complicated reasons, got rid of that. We could undo that. Some people are advocating undoing that.
But most people who advocate it now think it would—since we already have Senate elections that are inevitably statewide, maybe in those states unlike Wyoming that have more than one representative, maybe you want to subdivide the electorate according to some criteria other than just trying to mirror the entire state. Because your random proposal to create specific districts is an effort and randomness would do this to say, you know, each of the 55 districts would mirror demographically the state as a whole. And so that would functionally look like 55 statewide elections in terms of political competition. What it would do, back to your notion of a parliamentary system and building coalitions, the question is whether you want in sitting in the legislature a kind of demographic diversity of a variety of stripes: farmers, workers, people who live in the north, people who live in the south, older people, young… in other words, or do you want every single representative to be, you know, the majority of the electorate as a whole? I think you can make the argument that legislative debate is better with a diversity of voices as opposed to every legislator mimicking the same majority of the society. Do you follow me?
Bob Zadek: Most people would agree with you.
Reforming the Electoral College [23:15]
Bob Zadek: Now, we must spend some time, only because I want to take advantage of the thoughtfulness while I have it. Please share with us your thoughts on the Electoral College, the system, and I guess an alternative would be direct election, although there are sure lots of alternatives. But if you had to draw a dichotomy just for the purpose of conversation, you would say the Electoral College is a very different or somewhat different system than direct popular vote, majority wins. Which do you think would be healthier for our country and help us understand your reasoning?
Ned Foley: Yeah, thanks. So this comes back to the issue of the feasibility of a constitutional amendment because my own preference would be to replace the Electoral College with a national popular vote, but with this caveat that’s crucial. It goes back to that difference between majority versus plurality. The founders really cared about this point. They said you had to win a majority of electoral votes. And they thought about—they consciously, if you look at the debates at the founders, debates about the 12th Amendment that revised our Electoral College, they spent a lot of time on this distinction between majority winners and plurality winners. And they wanted majority winners because they thought that was how to represent the public as best as possible.
So I would not want a pure popular vote if somebody could be president with 33% of the vote or 22% of the vote in a multi-candidate race. I think you’ve got to cross that 50% threshold to sit in the Oval Office and have your finger on the, you know, on the nuclear button, so to speak. And I think a problem of our current system is that although you need a majority of electoral votes, you can get that majority by winning a plurality in the states. And this affects both political parties right now. Sometimes I ask my students, “How many states do you think Bill Clinton won a majority of the popular vote in when he won for the first time in 1992?” And, you know, people debate on what the answer is. Do you want to take a guess or do you want me just to say what the answer is?
Bob Zadek: I remember he got, if I’m not mistaken, about 43% of the popular vote. I seem to remember that number. If the number is off, it’s off by a few percent, I think. But that was compliments of Ross Perot.
Ned Foley: Exactly. Yes. And that’s the nationwide number. So he never crossed 50% nationally. He did win a majority of electoral votes because he won enough states. But the only state that he won a majority of the popular vote was his home state of Arkansas, then also the District of Columbia, which has three electoral votes. Every other state he won, he won with under 50%, and some of the states he was under 40% because in those states Perot was strong enough and Bush was strong enough to create a three-way split that you could win the entire state with, you know, 38%, 35% of the vote. That’s not a good system, frankly. That’s not a partisan point on my point. It’s just if we want to elect someone to this powerful office, we should have a system that gets you to a majority.
And that relates to the second main structural feature that is in the Guardrails report. Beyond eliminating gerrymandering through the kind of reform that we talked about earlier, I think it is essential for, whether we’re talking presidential election or we’re talking elections to the US Senate, to have a system that builds upon the insights of how do you design a system that’s best achieves a majority winner. And we could talk more if you want to about, you know, how to go about doing that.
Social Media and Common Carrier Status [27:20]
Bob Zadek: So you would use the criminal justice system as a way to, through the threat of prosecution—it’s not going to be the actual prosecution because that’s too slow a process and the falsehood has already been stated. So the fact that somebody gets punished later, you hope will discourage the misstatement from being uttered in the first place.
Ned Foley: This goes to the idea of guardrails. You hope when you set guardrails, you hope the car never hits the guardrail and goes into the pasture, as you were talking about. You hope that just seeing those guardrails and knowing that they’re there keeps you on the road. And again, I think we have to be careful about exactly how we write this statute. I don’t think you should have a broad statute that any political falsehood, even if intentional, is automatically, you know, a threat of prosecution. I think it has to be, you know, tied to the political professionals doing it and there has to be proof not just that it was false, but it was motivated for electoral purposes and some evidence on that. So there’s some details to be drawn out. But if it was effective as a guardrail, it would never actually be invoked because it would keep the process on the road. In other words, the candidates would no longer think they have the right to be blatantly false. They would exercise an appropriate degree of self-censorship. You know, we don’t want too much self-censorship, but we do want politicians to self-censor and avoid blatant dishonesty. Or at least let’s have a conversation about it.
Bob Zadek: Should Twitter be allowed to do what it does? Is Twitter really a mouthpiece of government? Should they be treated as government and regulated by the First Amendment? Common carrier, which you can explain to our audience. Anything that we as a democratic society are doing wrong about the perhaps excessive influence of social media on the electoral process.
Ned Foley: Yes. So here, going back to the founding, we have both the First Amendment, which we cherish and should, and we also have the Post Office Clause of the original Constitution in recognition that you need a system of distribution of communications as well as the freedom of speakers to speak. And, you know, so the Post Office was our original common carrier, to use that terminology. They have to accept whatever gets put in the mail. You know, the Post Office is not liable for any… again, I’m not in the business of trying to punish people very much for speech, but, you know, there have been obscenity prosecutions of things that get put in the mail and so on and so forth. But in any event, whatever might be actionable as things that are not allowed to be sent through the mails, the Post Office isn’t the one that gets punished because their obligation is to be the common carrier.
Likewise, the telephone company, right? I mean, the telephone company shouldn’t—and so the Post Office also shouldn’t be censoring anybody. The telephone company shouldn’t be censoring anybody. They should be the platforms that allow freedom of speech. Now, newspapers, for example, are not common carriers. If the newspaper prints a letter to the editor and it’s defamatory, the newspaper is on the hook, subject to the strict rules of defamation. And it seems to me that where we’ve kind of gone awry is we’ve said that these social media platforms get to have their cake and eat it too. They get to have editorial control in terms of the messages they amplify. So they’re like newspapers making judgments about what to elevate or what to include or not. You know, Twitter can kick somebody off the platform or so forth. So they act with editorial control, and yet we’ve given them statutory common carrier status by saying you’re not liable for the consequences of your editorial judgment. That, I think, is dangerous. I think a well-run system of free speech distinguishes and puts the common carriers on one side and the editorial newspapers and content providers on the other side. And Twitter should be allowed to choose, not forced one way or the other, but it shouldn’t get to be both simultaneously.
Bob Zadek: So they get to elect: we’re a common carrier, we’ll behave by those standards, or we elect to be a newspaper with editorial control and regulated by those standards. Being a newspaper is not a death sentence. The Old Gray Lady has shown us that. So obviously electing to be treated like a newspaper is not a death sentence. It’s simply a different model. Similarly, electing to be like a common carrier is not a death sentence.
And by the way, Ned, my closing thought is you mentioned both in your report, I think, and you did on the show, the concept of a phone company. 80% of my audience doesn’t know what a phone company even is. Those days are over. Wake up and smell the roses. There are no more phone companies anymore. It’s in the ether, it’s in the air.
So thank you so much. We’ve been speaking to Ned Foley. Ned was a progressive team member putting together a series of recommendations on what guardrails our democracy needs to function better. It was a project sponsored by the National Constitution Center. The entire report is available for sure at the National Constitution Center, as is about a one-hour audio of a discussion of Ned’s views and his teammates, the other two teammates as well. I commend listening to all three. You will be the richer for it and you will be a smarter voter and feel more optimistic about the voting process in our country. Ned, thank you so much for giving us your time. I know and we all know how valuable it is. You’ve helped all of our friends out there see our country on somewhat more informed basis than before. So thank you so much and thank you to my friends for sharing with us an hour of your time.
Ned Foley: Thanks, I enjoyed it.