Transcripts For CSPAN Federalist Society Debate On The Electoral College 20240712

Thank you to the Federalist Society for hosting this debate at its annual faculty conference. Im delighted to be here with two distinguished scholars to moderate this debate on the question should the Electoral College be as you are aware, the constitution establishes an Electoral College for choosing the president meeting in their respective states, the electors vote by ballot for the president and Vice President. Alexander hamilton wrote in federalist 68 that the Electoral College will provide a practicable obstacle 2 intrigue and corruption, he said that it would impose capable discernment for deliberation over the selection of the president. Hamilton thought the system best designed to vent, and disorder. As we head into the 2020 president ial election, debates about the Electoral College once again emerge over the desired voting of our constitutions method. This debate is an important one about our republic and about our constitutional form of government. It raises questions of civil, what are the values to be promoted in a democratic republic . In a federalist form of government . What precisely does the constitution require electors, of electors, and how far can states regular what their electors do . How do concepts of Voting Rights such as one man, one vote impact these questions . In addition to the requirements and political principles, debates over the college are invariably about practical concerns. What are the consequences of the college for Political Parties and campaignfinance . For democratic accountability . For correction, for promoting the values of a Constitutional Republic . For our debate we have two scholars who i will briefly introduce. Debating in the affirmative we have lawrence who is the professor of law and leadership at harvard law school. He is the offer author of many books on the topics of government, and flexural property. His recent scholarship has focused on political and other forms of corruption. He ran for president in 2016 and he is the founder of equal citizens, a nonprofit with a seemingly Simple Mission to fix democracy by establishing truly equal citizenship. Arguing in favor of the Electoral College is steven sacks who is a professor of law at Duke Law School where his research focuses on civil procedure, constitutional law, legal interpretation and legal history. He is a regular blogger on the conspiracy where he is written about the Electoral College. Our pharma is simple, the professors will each give an Opening Statement which we will follow with some responses and discussion and then open it up to questions. As excited as you may be, we will not be putting the question to a popular vote. [laughter] with that, professor. Thank you so much and i am grateful to the Federalist Society for entertaining this debate, i hope it is more a discussion. You know in the middle of this president ial campaign, we have had many candidates talk about the question of the Electoral College. It is surprising that this issue has attracted more heat than light, one of the only issues in the president ial campaign where that might be said. What i want to do is move beyond of pyrotechnics of this populist question and focus on what i think is a really hard and important question we need to resolve. Im going to propose a solution that i do not believe anybody should oppose. At least on principle. To get to that solution im going to go through three steps, i am going to talk about what it is, what the Electoral College is. Not that you do not know what it is, but the critical elements i think we have to keep in focus, second then, what i think is wrong with it given the characteristics that i have identified and number three, how to fix it. So what is it . I think it is import to identify three critical structural elements that define the characteristics of the Electoral College. First, it is statebased or at least states plus the district of columbia. States in the senate idea that they are running the state and the cap elation is determined to determine who gets the Electoral College votes for that state. Number two, it is essentially winner take all in the states. Essentially maine and nebraska have a partially winner take all system. Under a winner take all system, if you get just one vote more than everybody else in that election, you get all of the Electoral College votes in that state. And number three, it is all your riven elect tour driven. If you get 270 electors, you win the contest, but it is electors driven that in the sense that electors are people and they play a critically Important Role in deciding how those votes get cast. It is important when you think about these elements to identify which of them is actually in the constitution. Plainly, the statebased character of the Electoral College is in the constitution, that is it design area did winner take all is not in the constitution. Winner take all developed just after the jacksonian. Period to be the default way in which electors would be allocated. There is a race to the bottom or top pending on how you conceive of it. When it first started, jefferson was completely outraged that this is the way electors would be allocated but it was an innovation the state imposed on the structure the framers gave us. And number three, it really is elect tour driven elector driven. I am a little conflicted on this question, i am the lead counsel in a pair of cases that the Supreme Court will decide whether to grant on friday. They are two cases which address the question whether electors can be legally bound to vote the way the state wants them to vote. The 10th circuit wrote a 120 page opinion saying no they cannot be bound, the washington Supreme Court concluded that yes they could be bound. I think it is obvious i am going to even say here in the Federalist Society it should be obviously clear that electors cannot be bound by law, they are constitutionally free. They are constitutionally free, because the state has the power to appoint, the power to appoint does not carry with it the power to control performance of the office to which you are appointed. Just ask any president when he were or possibly sunday she reflect on what Supreme Court justices they have appointed, do. And number two, the electors are quote electors. They are not agents or delegates or clerks, they are people who, like electors choosing who the representative or senator will be, exercise a constitutional discussion. The Supreme Court has said they exercise, they perform a federal function. If i had any courage, i would write a brief in the Supreme Court that was one page long, it would say, you have said they exercise a federal function, can a state control some entity exercising a federal function . The answer is no since the supremacy clause has been part of our design. Can a state penalized somebody for exercising fender federal function the way the state does not want them . The answer is no, not since mcculloch. Since the electors are quote electors, electors are in the sense free and this is a critical element of the design the framers have given us that we must continue to reckon with today. These three elements can be judged independently and here is how i judge them. The factor that electors are constitutionally free is potentially catastrophic in the current climate of our democracy. If we imagine a scenario like 2000 where a couple votes determined who was the president and leading up to that election, it has been reported that there was him according articles from the times which have been denied but i am going to report what has been said, leading up to that election, the George Bush Campaign thought they would win the popular vote but lose the Electoral College and they were developing the argument at that time for trying to persuade electors to vote with the popular vote and against the election. My view is that if, in fact that happened, if two electors switch their vote given the current context of our democracy, that would be an extremely difficult thing for the nation to accept. The second feature, that it is winner take all i think is really awful in a way that i want to describe. The third feature, im going to get in trouble with my liberal friends, but the third feature that it is state based is in my view is good enough for government work. It is a design feature, not flaw and i want to describe a solution that does not try to take that away. The fact that this is constitutionally compelled means that if you wanted to fix the problem of elector freedom, it is going to require Something Like an amendment. I want to start by focusing on the winner take all feature because i think that is the core to understanding the problem with the current scheme. There is an obvious logic to winner take all, a political logic. The political logic is the only states that matter in a winner take all system are the socalled swing states. Those of america thinks that this is the country that elect our president , but of course it is this country that elect our president. The socalled swing states of america. In 2016, 90 5 of candidate appearances were in these 14 states. 99 of campaign spending. The thing about those swing states as they are not small states, they are not rural states, they are not slave states, they are not specially intended states. They are swing states meaning they are sufficiently purple to be states that could go either way. The logic of campaigning is you only waste your money in places where the result could go either way. There are two important conclusions that follow from this logic of swing states. Number one is to recognize no framer ever planned or intended or thought about a system that would be controlled by winner take all in the swing states, it was not what they were conceiving of. And number two, the swingers do not represent america. They are older, they are whiter you hear about coal miners because they are throughout the swing states. What this means is that the entity electing our president is not representative of america. Which means in this sense, its an unrepresentative president. And the logic of that fact drives the candidates to appeal to swing state america over the rest of america. This fantastic book by doug greiner and Andrew Reeves is an extraordinary empirical analysis of what happens in president ial politics and president ial administrations as they think about this dynamic. And what they show is that spending gets bent. And policies get bent. To benefit the swing states over the rest of the country who, that does not have the same power that the swing states do. In my view, this is the problem, of the Electoral College. Not the one out of every nine president s problem that has produced president s who are not actually chosen by the majority of voters. Not the one out of nine problem. The every election problem. Because in every election, the dynamics of this system drive the candidates to focus on an unrepresentative slice of america in order to get them elected as the president of america. Ok. So, how would you fix this . Well if these are the elements that need to be fixed, the easiest fix is something called the National Vote compact. It is where when 270 electoral votes have agreed to this compact. They agree to pledge their electors to vote for the winner of the National Popular vote. That compact would solve the winner take all problem. Because it would essentially be oneperson, onevote. And everybody would have an incentive to campaign wherever they could get a vote. It is not any more important in swing states versus any other place. I think it likely solves the electoral freedom problem because it would guarantee that the winner has at least 270 electoral votes. And then they get whatever other electoral votes they would get from states that are not part of the compact, creating enough of a buffer never to make it dangerous that one or two or three electors switching sides could actually affect the final result. But what the National Popular vote compact does is it surfaces the problem of a National Election run through statebased administrations because this count for the National Vote is being produced by 51 separate jurisdictions that have separate rules about who gets to vote or how they get to vote or what the techniques for voting are. So in my view, this system is constitutional. It is not clear in my view whether it is stable. We now see colorado trying to withdraw from the compact. But the compact as of right now if it needs 270 votes has 196 pledged and 113 in play. So it is a feasible possible what we could think of as the easiest fix. But what i want to do in the 10 seconds ive got left is to kind of think beyond this obvious hack to what we could call the best fix or at least a politically possible fix that i think we all should be focused on. And the fix has two elements. The first is to say were going to keep the allocation of votes as it is. Every state gets the same number of votes as they have electors right now. So small states get a benefit over large states. But the second part, which is kind of hard to include in a tweet, but here it is. This is a system that says the top two get the electoral votes allocated in a fractional proportional way at the state level. So the intuition here is pretty clear. If the state of montana votes 35. 4 for the democrat, which is what they did in 2016, then the democrat would get 1. 062 votes and so on throughout the country. And the point is the dynamic that that would produce would mean that every state in a sense was in play. And candidates would have an incentive to be campaigning anywhere there was a vote. Every vote in the sense would count. So this solution you can imagine fixing in an amendment like this. The first part of that amendment would address the electoral freedom question. So, it directs that electors would vote as state law directs. The second part would look like this. It is a little bit of a bear, but it is not hard when you break it on. So the first part says it is not going to affect the current election or any election within 24 months of the amendment being considered. The second part says the electoral vote shall be divided proportionally between the two persons receiving the most votes within the state as determined by the method of tallying votes chosen by the state. So a state could choose rankchoice voting as a way to figure out who the top two people are. Or it could just say the top two people, it is up to the state. And then finally with fractions calculated to all significant digits. So that means that essentially it is as if it were tallying the individual votes. This plainly fixes the electoral freedom problem, because it directs electors vote as state law directs. It solves practically the winnertakeall problem, because it effectively makes every vote matter, almost equally. Now, small states keep an advantage, yet it turns out that thats effectively politically neutral because small states are equal in a partisan sense between republicans democrats. Those bottom 10 states are five blue states and five red states. So even though the thumb is on a scale to benefit them it is a benefit doesnt have a partisan valence to it. And finally, it embraces the statebased model of the framing design because it allows each of these states to run their elections however they want but they resolve it just at the question of the electoral votes as the electoral votes are concluded. Ergo not really appropriate for an ergo, but every debate needs an ergo somewhere in it. No one i think should oppose this kind of solution this is the lodge gossiped solution updated a little bit. No one because no one i think can defend the intent of the existing system. The existing system was intended by nobody. It has no purpose relative to any democratic principle that one can articulate. No one has defended its basis. And if were going to have to fix it, if the electoral freedom problem crates a strong motive. If the Supreme Court declares that electors are free to actually address the problem and fix it, i get that is a big if. But if we need to fix it, then we should fix this too. We should create a representative president elected by all of america. And the question for my opponent is, who could be against that . [laughter] [applause] judge rao professor sachs . Prof. Sachs thank you very much to the organizers for having us, to professor lessig and to judge rao and thank you to all of you for sharing your lunch time with us. I do oppose that. And im going to engage in the pyrotechnics that professor lessig warned about. I think the Electoral College is pretty good. I recognize thats a stirring proclamation. I know the folks in the back from cspan are glad they have cameras to record that someone thinks the Electoral College is pretty good, but i think it is good enough for government work. And it is good enough to be worth keeping. Now, in defending the Electoral College, im going to be defending the modern system we actually have. It is not, as professor lessig noted, with the framers had in mind. But it does follow the rules that the framers laid down. Following that framework we have adopted a system of popular elections statebystate. And i think the most important thing to remember about the Electoral College is that it is statebystate, as martin diamond stated nearly 40 years ago. President ial elections are already just as democratic as they can be. We already have one person, one vote in the states. Elections are freely and democratically contested in the states. Victory almost always goes democratically to the winner of the raw popular vote in the states. The label given to a direct popular election is something of a misnomer because the elections are already as directly popular as they can be in the states. Democracy is not the question for the Electoral College. Federalism is. I see good reasons for keeping a partly federal, partly national way of picking the president in a partly federal, partly National Republic the way we have. And i think those are good reasons for keeping the Electoral College. So first ill explain why i think the Electoral College is better than a National Popular vote. Why i think it is better than the system professor lessig proposes. And why i think it really does preserve something meaningful about the kind of democracy we have. So start off with the National Popular vote. Let me say more about each of those. We have had over the course of our history to elections in which the Electoral College vote was seriously disputed. Period, we have had six elections with the National Popular vote within a 1 margin of victory. Beat hancockield by 1800 votes. That was a margin of 0. 09 . Anyone who lived through the isrida 2000 experience shuttering. You would have to have a recount in every polling place in america, because every vote that is undercounted or over counted would affect somebodys total. That means its not very hard to pick up or unfortunately to suppress 2000 votes across all of america, and yet that is what we have to guard against. One feature of the Electoral College is it somewhat caught arises fraud. It limits fraud to places where it is harder to conceal. If you are in a blue state or red state, it doesnt matter if youre margin is 20 , 25 . The electors are going to be the same either way. The place that matters are the purple states where people are more divided. Where by the states virtue of being purple you are more likely to have officials in the other party in office to look over your shoulder and cry foul if something goes wrong. Thats not a guarantee, but it does limit the incentive for fraud. One way to prevent that kind of Election Fraud is nationwide election regulations, and i imagine you would have it. Variation choke off across the state. You need a nationwide definition of who can vote and what counts as a vote. New jersey gave the vote to women in 1776. Theres no way they couldve gotten away with that in a National Popular vote situation. Today, if a state wants to drop the voting age to 16, or if they want to drop the voting age to zero and let parents cast their kids votes, which i think is a terrific idea, they can go ahead and do it. Anyonest have to ask position. Cant do that in a nationwide popular vote system because it breaks the calculation of what counts as a popular vote. If we had the National Popular vote compact, which i dont think is constitutional under the current regime, they wouldnt know how to handle a state that expands the franchise. A fourth danger is a nationwide Splinter Party. By having winner take all elections in lots of different districts to add up to a National Office tends to encourage big tent parties. I think that is good because it encourages parties that, in order to win everywhere, have to win somewhere. It encourages parties that have to govern and succeed at governing in order to win. By contrast, the nationwide popular vote says if you can get an intense 33 of the electorate, you might win a six way contest and have no incentive to moderate. I think that would be dangerous for the country as a whole. How does our Current System compare to professor lessigs proposal . The fractional vote might have a lot of the downsides of the National Popular vote but none of the upsides. It would have nationwide recounts. Basically, every vote anywhere would contribute to the total. It would have all of the nationwide fraud worries. Havema and illinois would an incentive to run up the score even corruptly. You still have the Splinter Party worry, but if you limit it to top two, you would have the problem of peoples votes going to candidates they did not support. In utah, 22 of the electorate voted for evan mcmullen. If you split the rest between trump and clinton, you would have a distorted picture of how people in utah allocated their votes. It would create an enormous small state bias. Winner take all gives large states an advantage that counterbalances the small state advantage from getting two senators each. You can get a lot more fractional votes with fewer votes by campaigning in small states. Its exactly the kind of governance you see with swing states. The bias in the system. Nationwidend the Electoral College as it exists . The answer is yes. The nationwide system we currently have is in fact democratic. It does treat peoples votes equally. You might say, how can that be true . If im in New Hampshire voter, my vote counts more. If you look at how other countries handle elections and how we handle elections in our house of representatives, that is not true. I live in chapel hill. It was going to be a safe democratic district anyway you draw fair lines. Does that mean if i go to the poll and vote gop that my vote doesnt count . Neighborre than if my votes democratic. It wouldnt affect who controls the house of representatives. We both have an equal chance to affect the outcome even though our little election is part of what happens in the country as a whole. HomeTexas Democrat stays or chapel hill republican stays home, its exactly the same because their votes affect with the total is going to be in their election. We dont say that the house of representatives is illegitimate for using election districts anymore than we should say the presidency is illegitimate for using the Electoral College. Oftin trudeau won a majority parliamentarian seats with less than a plurality. They didnt have one big popular election. Likewise in the u. K. , people joked that the reason brexit is taking so long because it won the popular vote but lost the Electoral College. You couldnt get a law passed until you add a majority of parliamentary seats willing to endorse it. Thats a standard way of governments doing business. Its not something we should see as deeply illegitimate. Districts . Ave these the answer is it allows for more representative government. It allows for greater influence by smaller interests over the hole. If we think about a city council election, we can see how smaller yourests have a voice when divide it up into districts. Or when you are thinking about how diplomats put together a powersharing arrangement, they dont say, heres a map of bosnia. Everyone gets one vote. Good luck. They have checks and balances to make sure no one interest goes over the others. States is, the united not bosnia, but we do have a very large and diverse republic that is divided into selfgoverning communities that get to do on some topics what they want to without having to ask permission. In the same way, the Electoral College requires you to win those selfgoverning communities. I think that is an advantage because it causes the National Government to be more careful about stepping on a states to. How will this policy play in colorado . At the same time, individuals have more influence. You get to call your congressman way a call tothe the National Republican committee wouldnt help. Given all of this, why should we allow people from a wyoming or New Hampshire to have more influence . That is already how the system works. If you look at the house and senate, if you want to pass a law, you have to have people representing not only half the population but people representing more than half of the states. That is the way our partly federal, partly National System works. The Electoral College is just a compromise between the federal and National Aspects of our system. Not everything that states want to do is necessarily good. Weve seen a lot of changes in the past century, but not all for good reasons. If you think there is anything to federalism, especially if you think federalism should be protected, then you need some political safeguards, and the Electoral College happens to be one of them. The Electoral College might not be what any of us came up with sitting down at a drawing board, but the same is true about the state of new jersey. Who ordered that . Drawy would sit down and the lines that our 50 states happen to have. They are what we have inherited. There has to be a heavy burden of proof against a reform that would scrap the system we have in favor of one where the problems havent been the thought of. I think professor lessigs proposal doesnt overcome that burden of proof. If you want to become president , you have to convince a number of states to back you. It bek that works when system is partly national. I think that is good enough, and good enough is what we should be after. [applause] do you want to take a couple minutes to respond . That is incredibly helpful because it is important to distinguish between the things we are disagreeing about and the things we have no disagreement about. Im not advancing the argument in favor of a National Popular vote. I should, but that is not my purpose. I purpose is to advance a modified version of the current Electoral College, which contrary to what you are suggesting, retains all the things you identify as values of the Electoral College. We are all in this period of grading exams. I accept full responsibility if this is not clear. It is said is proportional allocation at the state level, so you decide how to allocate at the state level, but there is a firewall between pennsylvania and ohio because each of those states is deciding independently. You would probably identify a problem where, for example, in utah, when you have a thirdparty candidate, if that thirdparty candidate was substantial, that could affect the result. That is why states like maine have experimented with ranked choice voting, which would eliminate that spoiler affect. I would encourage that kind of statebased innovation. The core point that i am making is that the Current System of federalismbased Electoral College determinations fundamentally biases the system in a way nobody expected or wanted or argued for. Are a minority of the United States. The consequence is that president s care about a minority of the United States. Republicans in california just do not matter. Thinkid everybody will about, how will it play . They only think about how it will play in 14 states. In this election, only five states. Lets have ag is federalbased system that gives them an incentive to think about how it will play everywhere. Everywhere would matter if you had this proportional allocation of the Electoral College vote. That allocation is not just better democratically in the sense it would give more in the country a voice in choosing who the president is. Its better from an equal protection perspective. The Supreme Court has expressly said that a winner take all resolveske this, which the allocation of delegates at , footnote 12,el thegot to that case Supreme Court has expressly said that a winner take all system like this, which basically resolves the allocation of delegates at an interim level, like in 1963 footnote 12, the court expressly said that that system, which is basically Electoral College at the state level, is a system for counting the votes of the minority for the purpose of discarding those votes. And that was a violation of what equality would require. This alternative would eliminate that problem. What this would do is give everybody more power relative to the current stump which gives power to the Supreme Court instead. In the end the only argument we are going to have each are that my alternative would biased in favor of the small states, whereas the current alternative bias is in favor of the big states. I can tell you many on the right would be surprised because many on the right think the Current System bias is in favor of the small states. Im glad we are in agreement that that is not what happened. But i just deny the empirical claim. There is no basis for expecting the relatively small number of votes from the small states would create a systematic advantage for those states relative to others, especially when you consider the cost of campaigning in different states. It might be, but there is no reason to believe it would be. So when you talk about burdens of proof, we have a system that right now creates a substantial burden on the opportunity of a majority of americans to have an influence on the election of a president. Why is that burden not enough on my side . Lets tinker and figure out something that could be better. Prof. Sachs i appreciate that and i also apologize if i had been unclear. If there were a hat from which we picked out the names of swing states and safe states and declared only the swing states could any ever have influence, i would agree with you. I think that is a bad system and it would bias the system in all the ways you describe. But there is no hat. The reason why states are swing states is because the people actually disagree about who should be president. And the reason why a state is not a swing state and it is a safe state for one side or the other is that everyone there has already had their voice heard in saying we think the democrat or we think the republican ought to win. And the states change their composition. You know, missouri used to be a swing state. Now it is not. North carolina used to not be a swing state. Now it is. States move around. And the very fact that they move around limits the possibility of any longterm political bias in favor of some interests over others. By contrast, in a world of fractional popular voting, you would have a substantial interest in favor of small states. So i did this calculation not knowing that it would be fractional but on their proposal to just have proportional voting but sort of integer voting by electoral vote, you would need to convince an extra 266,000 in new york, or one third as many to get an extra electoral vote in wyoming. Because they are different and they do not show up as much, so you can get more fractional votes by going to the small states than you can to the large states. So my claim is not that the large states are the ones ruling the roost of the Electoral College. My claim is just their advantage in winnertakeall. And the small states advantage in having extra senators sort of counterbalances each other. Im not saying it comes to in an exactly even balance. It is a clutch. It is a compromise. So it winds up somewhere in the middle thats probably good enough. And in my view, the argument for shifting to a system that, yes, would be statebased in terms of proportions but would nonetheless have the impact that any voter manipulation anywhere affects the total everywhere because were calculating this out to like eight significant figures, you know were going to have a lot of digits behind the one, and so were going to have influence from all states all over, i think is actually worse for National Election administration. And is not obviously more representative of the people as a whole. So if you look over the course of american history, the biggest discrepancy weve ever had between the popular vote and the Electoral College was hayes tilden, where tilden reportedly got 3 more than hayes. So whether he actually got 3 more is not totally clear. There was a lot of election rigging on both sides. Especially in the south voting for tilden. But you know, 3 is not that much. It is not like were talking about, you know, tiny minorities of the people ruling over the rest of us. And i think for that much of a discrepancy between how the popular vote might come out and where the electoral vote would go, i think to be honest it is just not worth trying to change. I think that having a system that allows states to choose by state is preferable to a system that tries to spread out the election across the entire country at a polling place by polling place manner. Prof. Lessig so, really clear the point youre making that i want to make sure were distinguishing one part. So you say the states that are swing states are states where it is not yet resolved who would win that state. And thats why it is important to fight the contest in those states. So in that sense youre right. It seems to be an appropriate place to be conducting president ial elections. But the problem is the demographics of those people are substantially different from the demographics of the nation as a whole. Not just their color, or their age which is substantially different, but also the kind of industry that they are interested in. So if the president is supposed to be a National Officer, that is why that book by reeves and kriner is called the particular president. Theyre supposed to be a National Officer thinking about the interests of the nation as a whole. This is a system that picks a minority of states who have a particular but not National Interest in what the future of the United States would look at. So it is a pretty bad selection of this subset of the United States to select who the president would be. Now you described it as a, quote, compromise but thats my point, theres no compromise. Nobody ever made a deal about this. If the framers made a deal about this id be eager to hear their reasoning. But no deal was made. It is a kind of accidental consequence of a series of independent decisions that got us into what is in a suboptimal a place. And then finally i would agree with you, the whole reason im talking about fractional votes is that it eliminates this effect that you identify of the small number of votes in small states relative to big states to be able to swing an Electoral College votes. It eliminates it not completely because of the design of a thumb on the scale that gives wyoming three Electoral College votes when thats 66 times as powerful as what other states might have, but it does a little bit. And to the extent we want to respect a framers choice, there is, a choice to give smaller states slightly more influence in the ultimate choice of the president than bigger states. And thats what this is solution to. Prof. Sachs so i take the point that the swing states dont necessarily reflect the country as a whole. But again, the swing states are not predetermined. The swing states just end up swing states because everyone else has already voted. And those are the places that were unsure. So if the industries are different, if swing states have a lot of coal, it is only because thats where people are actually divided on the president ial election. So it is true that youre going to have, you know, the money and the attention go to the undecided voter. Often you might think that the undecided voter is not the person you want to be deciding the president ial election. But thats, you know, in any election thats how it is going to be. People are going to focus on the votes that are not yet won by either side. So the question is do we want a system which functions on a statebystate level that has the states interest as states taken strongly into account . Or do we want a system that sort of mushes out the influence of states by turning into very small fractions here and there . And i think that the administrations arguments against a fractional vote are Strong Enough to suggest that the statebystate system that weve just sort of lucked into, that was not a product of design, that is a product of evolution instead of a kludge between a lot of different interests pulling in a lot of different ways i think is a pretty good one. Prof. Lessig ok, but lets be clear, one ,it is not the case that under both systems were only focused on the undecided votes. Because in the system im describing, wed have a reason to turn out the people who are strongly committed one way or the other. Right now people in california, like people in texas, dont we know we can show they suppress the voting turnout because it doesnt really matter how theyre gonna vote. And they know that. But if in fact it did matter then wed be working to not only persuade somebody to vote republican whos voting democrat or democrat voting republican, wed also be eager to turn out people we know already support the candidate because that turnout would actually matter there. And those people would feel empowered because the system would be counting them just like it would be counting somebody from pennsylvania. Prof. Sachs so i think it really depends on what you think it means for the system to already be counting them. The system is counting them. They just dont exceed the number of people who disagree with them in their state. And thats the setup you have in any district election when im voting for congress in my district. Prof. Lessig yes thats great, versus sanders theyre counting them for the purpose of discarding their vote. Thats why theyre counting them. Judge rao i think it is probably a good time to move to some questions. Please wait for the microphone. My questions are mostly for professor lessig. The United States is blessed by the fact that we are a 50 state federation. We are chopped up into a lot of different pieces. If we were a fourstate federation of the northeast, the south, the midwest, and the west, i think that either the northeast or the south would succeed from that federation in fairly short order. So i think the block of states that you identify as purple states and that are undecided are the key states to keep the United States together. And that prevents secession. And i regard secession as a total failure of the american constitutional and national project. Second, one of the great advantages of the Electoral College is that it always produces a winner on election day. You always know by midnight or 2 00 in the morning whos won in the Electoral College. With a National Popular vote, the vote count could drag on for months, as the florida vote count did in the year 2000. You know, one county would discover 200 more votes for al gore, another county would discover 360 george w. Bush. Another county would discover 570 for al gore. And back and forth it would go. We could go from election day to Inauguration Day without really knowing who won the popular vote, because partisan Election Officials in the 50 states would find votes that we might not otherwise find. The Electoral College at least produces a winner nationwide. And thats a hugely valuable thing. And then finally, you talk about the compact among the states. And the agreement of the states if 270 electoral votes are allocated to award them to the winner of the popular mandate. Let me read you from article one, section 10. No state shall enter into any agreement or compact with another state. That compact clause forbids compacts among the states, agreements among the states. The interstate compact to award electoral votes to the National Popular vote winner is clearly an agreement or compact among the states. It has to be approved by congress in order for it to go into effect. And for in order for it to go into law. Prof. Lessig so, it is an extraordinary thing if it just so happens, as i think the other stephen was emphasizing, that the swing states are the glue that keeps the nation together. Otherwise we would have secession. That would be an amazing thing that in fact this string produced that result. Id love to understand the theory about why that would be true, but again, id have to say, id have to insist that that benefit needs to be justified against the cost, which is to tell new york republicans or California Republicans or Texas Democrats that their views are not going to matter to the president as the president is trying to figure out how to win an election. So, youre sacrificing something to gain something. Im skeptical youre gaining what youre describing, but even if you were, there still is an important argument left unsaid. Youre right about the speed which is produced by winnertakeall relative to what im talking about. But the amendment that im describing says that the winner is determined as the states determined. The amendment explicitly gives the states the procedure. And the procedure could include procedures for cutting off or deciding at a particular time what the allocation will be based on the votes that have been cast. So, i dont particularly feel the urgent need to feed the medias news cycle of being able to decide by 9 07 exactly who the president is. I think a couple days or a couple weeks wouldnt be such a terrible thing in exchange for giving more people an opportunity to participate in the actual selection of our president. I mean, i think thats the ultimate value that we ought to be pushing for. And finally as to the compact clause, way above my pay grade. Thats why im not defending or trying to engage in the compact. I will say that there are, theres a substantial body of literature especially from people on the right to suggest that the contact clause is dividing between certain things that require a concession of congress. And this is not one of them, because of preexisting state authority, versus those it would require concession of congress. And if it requires a concession of congress in order to be valid, then congress should enact it. I mean, if in fact the states want it, congress can enact it, but i know that theres a substantial dispute about whether every one of these types of agreements needs the consent of congress. And theres a strong argument that it doesnt. Prof. Sachs so if i could speak to two points there, first on the compact clause, the Supreme Court has in my view under enforced the compact clause. But i think the even on it is under enforced version of the compact clause, this still is a compact that would require congressional approval. And thats for two reasons. First, unlike just a simple reciprocity rule where you know , we recognize the bar membership from anybody who recognizes our bar membership, it actually requires a meeting of the minds. You have to all agree at the same time for the statute to have any effect whatsoever. Not until youve got 270 electoral votes worth of states agreeing does it click and the compact comes into effect. Thats one of the indicia of having a compact. The second thing is that it actually restricts a states ability to withdraw. So the National Popular vote compact says you cant withdraw from this agreement within six months of a president ial election. That is not the case for a bar reciprocity rule. It requires an actual governing instrument that binds the states abilities to change their own law that is the definition of a compact over and above ordinary legislation by an individual state. And then, third, the Supreme Court has identified as a reason to require congressional consent that it impinges on the federal structure of our union or aggregates the power of the Member States. And i think thats classically the case with the National Popular vote compact. The states with 270 electoral votes decide among themselves whos going to win the president ial election. And whatever the other states do is pretty much irrelevant. That, to me, is what impacting the federal structure and augmenting the power of those states means. If you know, in the days before the 17th amendment, if half the states agreed on which slate of senators they were all going to appoint, that would obviously give them control of the senate exclusively if everyone else though it obviously would be the kind of thing the compact clause was there to prevent. And i think the same is true of the National Popular vote compact. Finally on one point responding to professor lessig. And i think this might help articulate some of our disagreement. It really depends on what you see as the polity thats voting for the president. If you see the polity as the entire, you know, citizen over 18 population of the United States. Then it makes sense to say that, yes, it is unfair for a California Republican or a Texas Democrat to have sort of no impact on the outcome. If you see the polity as a composite of 50 smaller politics or 51 with dc, each of which is making its own decision about which way to go, then the answer is not that you have no voice. The answer is just youve been outvoted. The people in your election went the other way. You had as much voice as anyone else did. And they disagreed with you. And i think there are perfectly good reasons for seeing our country as an assemblage of a whole lot of states for a whole lot of national purposes. The federal constitution binds the states in all sorts of ways. Thats a very good thing. But it doesnt necessarily mean that when picking the president is antidemocratic that we would vote by state. Prof. Lessig lets just be clear about one thing there. Again, the point in gray is it is not ok that in the interim step along the way to choosing an officer, you throw away votes because you happen not to have won that interim step. So thats precisely the conclusion of gray contrary to that. Prof. Sachs and one mans modus ponens deductive. I mean maybe, maybe gray is wrong precisely for that reason. If we were to admit canada as the 51st state as indeed the articles of confederation invited them to join, but if we were to invite canada tomorrow as the 51st state, theyre big, you know, theyre the second largest country in the world. It would make sense that they would have some sort of internal districting system. And maybe our concept of equal protection as the court has applied it is mistaken in that way. Judge rao another question over here. I have a question about the way the president sees himself and the president ial mandate as they call it. And given that both president obama and President Trump both used twitter, and with each coming president we seem to have an arms race in terms of the rhetorical presidency ratcheting up, trying to connect with the people in a closer way, what do you think the effect of having a president seeing himself as even closer to the people, as the sole representative of the peoples will, what do you think would happen to that . Prof. Lessig under the modification i am talking about . Sure. Prof. Lessig that is a great question. I guess, you know, i start with a skepticism about this trend, the belief that this trend is not to be encouraged. Not so much because im skeptical about the capacity of people to understand these issues or reckon with these issues, but i am skeptical about the capacity to understand them and reckon them 24 hours a day, seven days a week. So, i think in fact we need to figure out structural breaks, pauses, ways to sit and reflect more carefully. And the twitterbased presidency is obviously resisting that. But to the extent it does have an effect, i think it has an effect by including a wider range of americans in that conversation. Right . Would the what would the Republican Party be like if republicans from california and new york mattered more than just the money that they give to the Republican Party . Like, what would that look like . I mean, it would it be a different mix of interests that i think would direct how the party would behave. And the same thing with democrats from kentucky, you know, or democrats there are some i hear or democrats from texas who would have a more significant role in what the Democratic Party would think of. And again, seems to me thats the presumptive baseline of what a representative system should try to do, to give equal representation to everyone whos a citizen within the republic. Prof. Sachs so i think your question is getting it something important, which is do we have the vision of the presidency as sort of the tribune of the people translating the popular will into law, or do we have the mission of the presidency is sort of a chief magistrate, you know, overseeing a very complicated executive branch but in some sense a functionary within that . Im not sure to be honest that that it would have too much practical difference, in that i do think a National Popular vote would increase the sense of mandate. But not so much. I mean, the president seems to be claiming the mandate even without a popular victory. So i dont know whether youd really see differences there. You know, during the convention for a lot of it they thought of even more indirect means of selecting the president , like by having congress appoint the president. I dont know whether that would be a good idea. People seem relatively attached to the idea of popular elections that affect the presidency but i think that it would it would have some effect but maybe not a first order effect on if we switched from the Current System to professor lessigs to a nationwide popular vote. Judge rao up in the front. Do i have this on . You identify coal over solar, but i wonder if you can name some other policies that you think have been distorted by the power of swing votes, just concretely . Prof. Lessig well, again, i would recommend the book which has a ton of examples, for example, around trade policy. So every president , republican or democrat, finds it really tempting to help the Steel Industry in pennsylvania with no good reason coming up to an election cycle. In this current administration, i think one really clear example of that was after trump became president the offshore drilling ban was lifted. States like california and new jersey were very upset about that. States like florida were also upset about that. Florida got an exemption from that almost immediately, and california and new jersey basically lost. Now whats the difference between california and new jersey and florida . It is floridas essential role in a president ial election. So if i didnt have the data that kriner and rees is providing, this would be pure speculation. But i think we have good reason to believe seeing the way president ial campaigns function and how spending gets directed that there is an effect. And if there is an effect, then the question seems to me is, what good reason is there to construct a system that produces the distortion when we could have a different system that would eliminate it . Prof. Sachs i think the question we really need to ask is magnitude. You know, how large is the effect and how persistent is the effect . So the baseline is were going what good reason is there to to have concentrated interests getting their way, were going to have sugar subsidies for florida, ethanol subsidies for iowa, and whoever knows what other kind of subsidies for everybody else. And were going to have that because the way the senate is set up and the way the house is set up. And the question is how much more of it do we have because of the way the Electoral College is set up. And how longterm is it . So given that states filter in and out of swing state status, is that a firstorder problem with the way of selecting the president or is it a secondary problem . I have not yet reviewed their book though it sounds very interesting. And id be curious as to as to the size of those effects. And whether they really are large enough to make us say you know what wed better revise the method of selecting. Prof. Lessig but i think thats a great perspective because i think both olson and madison just to pick a figure here on the stage would imagine that concentrating influence in these 14 states or in this current cycle five states produces a greater risk of this kind of capture and special interestdriven agenda, as opposed to diffusing the interest across the whole of the country which would produce the dynamic that would allow us to fight that special interest more effectively. Judge rao i could take the moderators prerogative. I have a question. It seems that a lot of this debate in the back and forth that youve been having there is a conflating of the various principles that you think are served by the existing Electoral College or by your proposal and the empirical consequences of choosing that. And i guess im wondering, and you know, there seems to be a lot of disagreement about the empirics, what would happen by making such a change, but im wondering how important you think the underlying principle is behind each of your proposals. Prof. Lessig well, thats a great clarification, because i do, and i should insist more strongly, i do think that the principal is the number one motivation here. We have a Representative Democracy. Conservatives often say we dont have a democracy, youre right. Framers meant a republic, by a republic they meant a Representative Democracy. It is kind of built into the title, a Representative Democracy ought to be representative. And that means you should not be structuring the rules to make some people less represented than other people. Now, nobody thinks that weve intentionally structured it like that. It is kind of accidentally walked back our way into that place, but the principle that says that when we have a president ial election everybody should feel equally empowered to participate in the election of the president of the United States seems to be fundamental. And then the empirics bolster this point. We know that swing states have higher turnout than nonswing states. So we know that the participation in the political process is affected by this rule. What justification is there to have a rule thats effectively suppressing participation in politics . Because obviously the participation matters more than for the president , it would matter for other offices as well. And then the empirics around what happens in spending, or in regulation theres also significant is again reinforcing the argument that we ought to go sustain the fundamental principle of representative equality. Prof. Sachs i think for me, the principles are part of the empirics in the following sense. When you say Something Like the Electoral College preserves a state interest in choosing the presidency, presumably that matters because what happens is actually different. You know, the Electoral College was made for man, not man for the Electoral College. So if youre going to have a system that tries to protect state interests, you wonder does it actually succeed in that effort . Judge rao you think that is the principle behind that . Protecting state interests . Prof. Sachs i think it is at least part of that effort. I think thats the reason why electors were designed to be states and not by they didnt have many other mechanisms available in 1787 but they could have come up with one, and one reason that they didnt was because they wanted the states to be able to speak in some sense as states. It is the state legislatures that decide on the method of appointment of the electors. Those were the units of government they had. And again, if you were assembling the eu today, you would probably want a substantial amount of power to rest with the Member States in shaping what the Central Government would look like. That means for me that it is not obvious that the principle of equal representation, which i do do recognize and which i do think has some value necessarily trumps the other worries, that would be created by a move to a nationwide system or to a fractional vote system. Prof. Lessig i want to raise a couple points. Many years ago i published an article called real and imagined problems in campaignfinance reform. And i feel a little today like it is real and imagined problems. The real problems are the recount problem steve mentioned, which we saw in 2000. Many which could be close to fall within mandatory recount laws. A real problem is fraud, which we saw in 1876 and 1888. In each of those cases its quite probable the nominal winner of the aggregated popular vote would not have won in a fair election, but the benefits of the fraud were isolated in the states in which the fraud occurred. There has never been a faithless elector that decided a president ial election. This is just not something that happens. When they are it is when it does not matter is precisely why they feel to be faithless. Another question is political power. Let me start with the coal thing. Thanks to the wonders of the internet, we can sit around and do this now. The top 10 coal producing states are wyoming, west virginia, kentucky, pennsylvania, illinois, montana, texas, indiana, north dakota, and colorado. Only two of those could even remotely be called swing states i think in any way. The top 10 Clean Energy Job states are texas, illinois, colorado, and indiana. Notice that those four states are on both lists. Followed by california, michigan iowa, florida, washington, and new york. So four of those states could be on the swing state list. Theres no reason if we just want to take that quick eyeball to think that the coal industry is somehow getting favored policy because it consists of swing states. And i think i have seen that in. And looked at the evidence on this in great detail i mean one example, you choose a bad example, that sometimes happens. There is very little evidence it is a real problem as opposed to a popular vote. In which you are pandering straight to the electorate nationwide to try to gin up popular votes. So i dont want to go on too long and i dont really have a voice raising inflection question to end this with. Ill just ask you to comment on those thoughts and whether in fact the problems suggested really are the problems we should be worried about. Prof. Lessig well, i will observe that i think it is 1832, but in fact faithless electors refused to support the Vice President ial candidate, throwing it into the senate. And then the senate had to vote to overcome the decision of the faithless electors. And i will say that youve seen both democrats and republicans recently advance a principle that faithless electors have a faithdriven reason to deviate from their pledge in 2016 and in 2000. So of course so far it is hypothetical. And my whole point is thats good that it is just been hypothetical so far. Because im fearful that when the argument becomes even stronger, which after a 120 page opinion by judge mchugh and the 10th circuit it seems that the argument is stronger, this is a problem that could manifest itself more clearly. As to the empirics, yes, the internet is great. It is also terrible because, you know, i dont know how you can dislodge the claims of a substantial empirical work through a simple list of two states, two subjects of states. So kriner and reeves point is not about, you know, coal. Their point is a substantial consideration of a wide range of policies, including trade policy and industrial policy and farm policy, which the evidence supports the claim that that policy is being driven by this dynamic precisely. So you might, i think it is a fair thing to say how significant is it, thats fine, but it is not a madeup problem. It is certainly real that this is a dynamic that affects president ial campaigns. And the question is what justifies a system that produces that dynamic when we could have another system that would neutralize it in a very madisonian way. Prof. Sachs so i think the faithless elector problem, it is hard for me to assess how big a problem it is in part based on the history and also in part of sort of what purpose that serves. So if we were sitting at the drawing board today, we probably wouldnt come up with human electors. That said, who are these electors . These electors typically in the states are people selected by the relevant political campaigns. You know, it is the Trump Campaign of the Clinton Campaign who give you the list of electors that theyre going to put in. So in what world would enough of them defect to sway the outcome . Probably a world where Something Else really bad has happened. I am imagining, you know, a president has a psychotic break sometime between election day and the day when the electors meet to vote or something. Its hard to get a sense of, you know, when would Party Loyalists en masse abandon their candidate . You know, maybe only when Something Else really wrong has already occurred. So its a little hard to see how bad the situation would be and how much we need to revise the system, you know, pass a constitutional amendment in order to forestall what seems to me a relatively low probability of that. Weve been discussing the extent to which the Electoral College distorts policy in favor of swing states on particular issues like energy or trade. And im wondering if we step back from particulars and we look more broadly over a longer time period at progressive conservative, how much is government policy swinging in one direction or another when the presidency passes from one party to the other. Does the Electoral College incentivize president ial campaigns to be centrist . And to campaign to swing states in a more centrist way, and then to govern in a more centrist way . I think it very well could. This is an empirical question and would depend a lot on voting mechanisms and voting patterns. If there are just no centrists there and there are a whole lot of you know uber republicans and democrats. And just a turnout question. Then it wouldnt necessarily make a difference in terms of centrism of the government as a whole. I dont think thats the case though. I think that you have a lot of legitimately centrist people in legitimately centrist places. And that does provide some incentive to moderate. Thats not, you know, sort of absolute incentive to moderate you know under the fractional Voting System i think youd also see people would still want to pick up the suburbs everywhere. There would still be incentives to moderate there, too, but i do think the Electoral College by requiring you to win somewhere in a place that already has a running government does encourage moderation. It also to some extent encourages sort of less overweening federal control because you have to worry about is there a state that will care a lot about this that we would be stepping on the toes of by doing this. The fact that the definition of a swing state is not fixed that you might create a new swing state by accident by doing something thats really unpopular there means that you have some interest to take state interests into account as opposed to you know political Interest Rate large. This is definitely diminished in sort of magnitude as the country has gotten more politically polarized. That doesnt necessarily mean that we should sort of poke the bear further and sort of go further down that road. I do think were seeing a change in the dynamic of how politics happens in the last 40 years with this question. So in gerrymandering, studies about gerrymandering you know theres been this long concern that gerrymandered districts would produce exactly the same kind of dynamic, where your incentive would be to appeal to the base and the non gerrymandered districts or districts that were swing districts would be more moderating. But in fact because turnout is 90 of the game its become the case that the better strategy is to play to the base as strongly as you can to get them to turn out, even though the district on the whole looks like it is a evenly divided district. And thats because evenly divided is not a measure of moderation. It is a measure of just how many republicans there are how Many Democrats there are. And i think the same thing could be happening at the president ial level. We dont have at least ive not seen any good data about it. I do want to add one bit though about to the empirical point about whether this is a problem we should worry about, at least the faithless electors problem we do have good reason demographically to believe that well have more very close president ial elections in the future than we have had in the past. In the past we had long periods where there was huge margins in the Electoral College which made the Electoral College seem like it was a very stabilizing influence. But the demographic analysis suggests that, as has professor king at harvard for example, suggests that when you look forward youre going to see many more very close Electoral College elections. So you know i represent seven faithless electors. I think it is a bad title in 2016. If there had been two in 2000 there would have been a different result. There was an argument that was being bolstered to say that those two should follow the publics will versus, you know whatever happened to, in the Electoral College. I dont think we can say that that chance that that argument is going to be effective, can be measured simply by looking whats happened in the past where theres been relatively few times when it would have mattered and when the actual entitlement to make that decision has been challenged fundamentally by many people within the economy. John . Thank you. This has been a wonderful exchange. Im wondering if either of you would reflect on how your arguments are modified, augmented, or changed if the number of electors had continued to increase as was originally proposed when with the first set of proposed constitutional amendments. Would the increase in the number of electors exacerbate the various concerns, moderate them, or have other effects on this debate that we should consider . So i think that given the nice analysis you made about the effect of whole number electors, the one thing we can say is if the number of electors went up substantially and you didnt fractionally allocate electors then the problem that stephen identified about the substantial benefit that small states have relative to large states because of the electors would be reduced. So you would have less of a distinct effect because of the whole number problem with electors. But from my perspective given the fractional allocation it doesnt matter whether theres 10 electors or 10,000 electors, it is fractionally allocated based on proportion of the total of the top two votegetters and so from the perspective im trying to advance it wouldnt matter but under the existing perspective maybe we would have given people more reason to think about an alternative to National Popular, winner take all. It is important to know historically you know theres been a big fight about winnertakeall throughout the 19th century. At first the push was to push for district based allocation. And then when district base d allocation became challenged because of gerrymandering there was a push for proportional allocation. And the proportional allocation hit exactly the problem stephan was talking about which is the whole number problem with proportional allocation this has never been settled in you know a constitutional sense that people think that this system makes sense and should be there forever. And i guess all im saying is now that we have a reason to think again about how to structure the Electoral College to reduce the publics sense that it is increasingly undemocratic, we ought to be pushing for a result that affirms a democratic character, at least a character of including a wider range of americans in the selection of who the president should be. So i certainly agree that if you double the size of the house which i think is an excellent idea for other reasons, that would diminish the impact of getting two senators included in your electoral vote count. Unfortunately, that may be one reason that we havent doubled the size of the house, because small states dont want to lose those to this the effect of those two senators. The point that professor lessig makes about wholenumber electors versus fractional is absolutely right. If youre going to do proportional allocation you really have to have a constitutional amendment to make it fractional because otherwise everything breaks. The number of apportionment paradoxes if youre curious about this you can go on the Wikipedia Page and learn all about the strange things that happen when youre trying to apportion small numbers of representatives would crop up tremendously if we were trying to do promote proportional representation for states with six or seven electoral votes. And in particular i think the top two problem would be very severe. So you would need to somehow figure out are we going to give proportional votes to Third Party Candidates or are we going to demand that you only get into the top two. Either way, there is no good solution there. Either youre very much distorting the proportional outcome from a particular district or you are encouraging the use of splinter parties. I think that the larger the house of representatives the larger the number of electors, the less these problems are salient. Every state had 60 electors, you wouldnt have to worry about them quite as much but given the system that we have now it very much is a problem. I just wanted to ask the reaction for most of the, elections which were talking about in one sense it didnt matter who won. And what i mean by that is obviously people felt very strong about who won one way or the other, but in terms of the country really having somebody represent they really did want, it was so close you know i mean these elections are decided by infinitesimally small things in various different ways. So one question, is part of the concern that if you had something that turns one of these elections that was incredibly close that everybody, would suddenly feel it was totally illegitimate and youd have almost revolution about it or is in some ways i guess im asking the question, is it more important that you have a system where people are comfortable with the final result even if you dont like it . Is that the major thing that you are looking for, or is the major thing you are looking for is heres the way it should work. My own concern is the recognition the majority of the country doesnt matter for the selection of the president is not just among us. The point is this is a powerful part of the rhetoric of the failure of the american republic. If the perception is we elect president s not by having a vote where everybody matters, the president who is elected under that system becomes weakened by that recognition. So i want to fight against the good argument in favor of that claim. I am not pushing all the way to the other extreme. Which is to say lets abolish the federal system, lets just have National Popular vote. Im trying to say lets try to adapt the federated system so it achieves the objective of everybody mattering. The other thing i am trying to avoid is what i do think would be deeply destabilizing. The point is a good one, to ask how likely it is. If there were that kind of set up, like in the senate, the Vice President ial race, i think there would be a substantial political cost, much more than bush v. Gore. Bush v. Gore relied on principles that in some sense we all agreed with, like equal protection. You might disagree about how the court deployed it but nobody was arguing whether equal protection was a value within our system. But if we announced tomorrow that these electors are free or in the course of a president ial election the electors are free and they get to change their vote, i think the resistance would be huge. So im trying to forestall that. So to forestall that i want to get two bites of the apple. I want to forestall that and also create a system that more regularly assures that the person who wins is the person who wins. And he or she wins by appealing to a wide range of americans. I think for the question is really good. So whats the failure mode of the system, whats the worstcase scenario. And i think for professor lessig, the worstcase scenario is faithless electors. And to a lesser extent the feeling of alienation from the electoral process. To my mind the faithless elector problem is small. The feeling of alienation primarily rhetorical. You know, it is really hard to say who would have won the 2016 election which party would have won if we had had a popular vote. We know what actually happened in the vote we did have but in a world of you know standard National Popular votes the primary system would probably work differently. You might have different candidates running. The Candidates Campaign differently. Thirdparty voters and what we now consider safe states act differently. And it is kind of like asking you know who would have won last years ncaa championship if you didnt have to dribble . Theres no way of assessing of that. The completely different world of a National Popular vote or indeed i think even a fractional proportional Voting System. So to my mind the failure mode is not that people are alienated from the Government Policies they see around them which i think most people dont even know and you know are not really acting on in terms of that sense of alienation. The failure mode is the national recount. I think that thats the one where people would really think the election has been stolen. The winner is illegitimate. Theyre engaging in all sorts of shenanigans so we should, too, and you really have a breakdown of civic. So to my mind the electoral in the Electoral College is the first barrier against that. And then the secondary worry is governments that disregard state interests in order to pursue more general ones. Sometimes thats a good idea. Sometimes not. I think the Electoral College partly halfway good enough gets us to the consideration, the interest we want. So one really important agreement that i want to concede im told im not supposed to concede in a debate but here it is, a concession. If in fact we could demonstrate that this would increase substantially the risk of these kind of nightmare scenarios that have been raised by the question by the audience and also by you, i think that would be a great argument against it. I dont think that we have the basis for making that claim right now. The second point is youre absolutely right, we have no way to know exactly how these campaigns would be run. There are a couple of people, political scientists who did interesting work. A swedish professor who is the most advanced empirical analyst of american political president ial campaigns has actually done the modeling under National Popular vote in proportional allocation at the fractional level and under the existing system. It is interesting how those things differ but we dont know. But that i think is an argument a kind of behind the veil of ignorance argument in favor, going back to your point about what is the principle weve got here. So im advancing a principle. I dont know if it is gonna benefit republicans or democrats, i really dont. But if we had a system where we could say to people, everybody matters, and the empirical types like kriner and reids would not be able to say we continue to have terrible farm policy. And we continue to have terrible import policy around steel because of this stupid system. That would make us all more confident in the political process. I accept and appreciate your concession. I do think people would end up fighting over the you know and 8h significant figures and 8th significant figures. I think you would find a lot of election controversy even in the fractional system. I think that fundamentally the worry that people are deprived with a voice is not accurate. The people do have a voice they, they have their voice in the state, and i think theres a reason in a system like ours for the states to be the ones that matter. A question over here. I would be interested to hear from both of you what you think would happen if we had something more like a popular election. Whether it is professor lessigs proposals or some other. The role of swing voters versus base. Ultimately, who would get, in this alternative universe, which voters would be catered to . Would it be more like National Interest groups . Particular types of singleissue voters, etc. , your thoughts on that. Can we also take the other question and then well do a little lightning round . We just have a few minutes left. Thank you all for a really good conversation. My question stems from sort of it seems like an agreement that we dont have the system the framers intended even if were operating under their legal rules. It seems like the framers intended for the Electoral College to be a mediator body, that they intended it to be a group of wise elected men who could filter the will of the people. So you had the popular election which was the democratic element, the more aristocratic element, the wise electors, and then you would have the monarch element of the presidency. So you would have all 3 balance there. Is there any reason to think there was virtue to the idea of electors being more independent and select people from the electorate that could help choose the president and exert their own independence . And is there any reason any way that we could have a system more like that and would there be any virtue in doing Something Like that . So let me take the second question first. My sense, maybe im wrong about this, but my sense is that theres no way in hell the world would accept right now the elites of the Electoral College secondguessing what the people do when they vote. I just dont think that is possible. Was it ever a good idea . I actually dont think the motivation so much about the elite but it was more about the practical problem of running a National Election in a context where it takes months even to get information from one end to the other. Their expectation was that you would have lots of favorite son candidates. And you would have a mediating body eventually that would be forced to decide many of these cases because you just wouldnt be able to get to the majority candidate but the driving force and foleys new book on this is the driving conception, especially after the 12th amendment, was to drive towards a majoritarian president. One who was not a fractional 33 but really was somebody who could be thought of to represent the majority. The other part about this is it is really important to recognize weve had two Electoral Colleges, the one the framers gave us and the one after the 12th amendment. Those are very different institutions. They expected very different president s. The first Electoral College expected George Washington types. After the election of 1896 people realized there was no gonna be George Washington types anymore. So then we had the really contested Political Party president. Thats what the twelfth amendment tries to adjudicate. Whats striking about the twelfth amendment is when the 12th amendment is debated we, we have already had socalled faithless electors or weve had, we have already had independent judgment by electors. And it is quite clear that they dont think thats a problem to be solved. They dont talk about it they dont fix anything in the twelfth amendment to try to address this issue. So theyre still ratifying the idea that there needs to be this ultimate check or this opportunity to make that check. And and however compelling that was then, i still feel that we live in a time but it is hard to see that compelling now as to, as to your question, it goes back to this question of do we really have moderates anymore, or do we have mixes of people on either extreme . I generally dont know the answer. Reasono think we have a to try and include a wider range , even of the extremes, from a wider mix of america in the choice of the president. I would love to see the relatively extreme republicans from california and new york compete against the extreme republicans from swing states. To drive the direction of the Republican Party. To see democrats from texas and kentucky arguing with democrats from massachusetts or pennsylvania. That would be a more interesting representative Democratic Party than the one weve got right now. I think these empirical questions are important. I would agree with that last part. Predictions are hard, especially about the future. I do not know what would happen. Jfk in 1956 in the senate, they were arguing about this. He said if we adopted a different system, the whole solar system of government power would not be affected. There would be knockon effects throughout the entire system. And i cannot predict for you precisely what those would be but i think the very fact that we cant predict is a good reason to hold off. Simple systems have simple problems. Complicated systems have complicated problems. We dont know what the complicated problems would be, how they would service, or the other measures. Even though they separated voting for tickets, they still allowed for a president and Vice President from different parties. If the president ial election goes to the house and the vp election goes to the senate, you can get different answers. That would be terrible. So i would be skeptical of our ability to plan for problems that we are not thinking of yet. And i think thats one argument to stick with an existing system , the devil we know. On the question of the aristocratic one, i think as a practical matter, i agree with professor lessig, theres just no support for that right now. If i were again designing the system you know the convention for a long time thought that congress would pick the president. I see some advantage in having the new incoming january 3 congress, which was not what they were working with. They were working with the outgoing lameduck congress. And they didnt want the president to be selected by a lame duck where they thought that people could be bribed. And people could be influenced in lots of ways. I dont take it would be so i dont think it would be so terrible if the new Incoming Congress picked the president. I think you might have had you know president paul ryan or president nancy pelosi. And i dont think that that would have been the worst thing for the republic but i think that right now not, you know , people like voting for the president , so i dont think channeling the popular element through the house of representatives has enough of a constituency. And i am told we are out of time. So if you could join me in thanking our guests. [applause] announcer cspans washington journal. Every day we discussed policy issues that impact you. Coming up this morning, your reaction to campaign 2020 Election Results. Join the conversation all morning with your phone calls, facebook comments, text book messages, and tweets. Watch at 7 00 eastern this morning. Statean secretary of Jocelyn Benson gave an update on the Election Results and took a few questions from reporters. The Associated Press has declared joe biden the winner in michigan, but the Trump Campaign is pursuing legal action over the states handling of ballast. This runs about 20 minutes. Handling of ballots. This runs about 20 minutes. Sec. Benson good evening. Im proud to stand before you today to announce the resultof