The Volokh Conspiracy

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National Constitution Center Releases Reports on "Restoring the Guardrails of Democracy"

The project includes reports by conservative, libertarian, and progressive teams. I am coauthor of the Team Libertarian report.



Earlier today, the National Constitution Center released its series of reports on "Restoring the Guardrails of Democracy."  I am a coauthor of the Team Libertarian report, along with team leader Clark Neily of the Cato Institute, and Walter Olson (also of Cato). There is also a Team Conservative report (coauthored by team leader Sarah Isgur, David French, and Jonah Goldberg, all of The Dispatch), and a Team Progressive report (coauthored by prominent election law scholars Edward Foley and Franita Tolson).

Here is an excerpt from the Introduction of our Team Libertarian report, which summarizes our recommendations:

American democracy faces a number of serious challenges. In the immediate future, we must establish institutional safeguards to prevent the kind of negation of election results attempted by Donald Trump in the aftermath of the 2020 presidential election. In the medium-to long-run, more must be done to empower people to be able to make meaningful choices about the policies they live under. Ballot-box voting has great value. But it is not enough to ensure genuine political freedom. The latter requires enhancements to both "voice" and "exit" rights. We need to both increase citizens' ability to exercise voice within political institutions, and give them more and better exit options.

This report takes on all three challenges. We propose a variety of reforms that, can address immediate short-term threats to democracy, while also increasing citizen empowerment in the long run.

Part I outlines reforms that can safeguard the electoral process against attempts at reversal, while also curbing presidential powers that could be abused in ways that undermine democracy. Among the most urgently needed reforms are new constraints on presidential powers under vaguely worded emergency statutes, such as the Insurrection Act. These can too easily be manipulated by an unscrupulous administration in ways that could hobble democracy. It is also essential to reform the Electoral Count Act of 1887 in order to definitively preclude the sort of effort to overturn an election that then-President Trump engaged in after his defeat in 2020. In addition, we propose ways to incentivize electoral losers to concede defeat, rather than engage in bogus accusations of fraud and voter suppression, and to gradually restore public trust in the electoral system….

Part II describes how a number of serious flaws in the democratic process can be alleviated by expanding people's opportunities to "vote with their feet." Under conventional ballot-box voting, individual citizens usually have almost no chance of influencing the outcome. They also have strong perverse incentives to be "rationally ignorant" about the issues they vote on, and to process political information in a highly biased way.

Expanded foot voting rights can help alleviate these problems. People can vote with their feet choosing what jurisdiction to live in within a federal system, and also through making decisions in the private sector. Relative to ballot box voters, foot voters have a much higher chance of making a decisive choice, and therefore much stronger incentives to become well-informed. Expanded foot voting can also help alleviate the dangerous polarization that has gradually poisoned our political system.

Much can be done to expand foot voting opportunities in both the public and private sector by breaking down barriers to migration, such as exclusionary zoning. Foot voting can also be facilitated through greater decentralization of political power, which would reduce the incidence of one-size-fits-all federal policies from which there is no exit, short of leaving the country entirely.

Finally, Part III outlines ways in which ordinary citizens can be empowered to exercise greater "voice" in their dealings with the criminal justice system, particularly through reviving the institution of the citizen jury. Since the Founding and before, jury trials have been understood as an important tool of popular participation in government. Alexis de Tocqueville famously focused on the jury system as one America's most important institutions of "popular sovereignty….."

Sadly, in the modern criminal justice system, the constitutionally prescribed role of juries in resolving criminal charges has been almost entirely displaced by so-called plea bargaining. Indeed, widespread use of coercive plea-bargaining discourages the overwhelming majority of criminal defendants from exercising their right to a trial by jury, for fear that doing so would lead to far more severe penalties. As a result, citizen-jurors no longer exercise influence over those powers of government that directly impact the lives and liberty of the people more than most others.

We propose multiple reforms that can help restore juries to their proper role in the criminal justice system. Judges, governors, presidents, and legislators could adopt rules limiting the use of plea bargaining and especially coercive plea tactics. "Trial lotteries" could increase the number of cases brought to trial. State and federal governments can establish plea integrity units that can provide independent review of plea bargains to ensure that improper coercion was not used….

Within the trial process, more can be done to inform jurors of the full extent of their authority, particularly the ability to assess the justice of the laws and penalties in question, as well as factual questions related to the guilt of the accused.

Even if adopted in combination, our proposed reforms would not cure all the ills that afflict American democracy. But they can do much to shore it up against threats, and empower Americans to exercise greater control over the government policies they live under.

The progressive and conservative reports overlap with ours on some points, while diverging on others. For example, the Progressive report suggests changes to the Electoral Count Act that are similar to our proposals, and there is also some convergence on other measures related to protecting elections against reversal. On the other hand, it also recommends legislation criminalizing "deliberate electoral lies," whereas our report specifically counsels against such steps. The Progressive report's approach to the problem of voter ignorance (expanded civic education) is also at variance with ours (expanded foot voting). I express skepticism about the education solution in some detail in Chapter 7 of my book Democracy and Political Ignorance.

For its part the Conservative report largely focuses on a different set of issues than either ours or the progressive one. Their major recommendations involve strengthening Congress relative to the executive, and political parties relative to individual candidates and interest groups. I agree with much of this (particularly constraining the executive), but have some reservations on details. Like us, they recommend against controls on campaign-related speech, though for somewhat different reasons. On the other hand, they, like the Progressives, strike me as too optimistic about education as a tool for overcoming public ignorance.

There is, I think, much to be learned from all three reports, and I hope they will make useful contributions to the ongoing debate over these issues.

Tonight at 7 PM eastern time, the three team leaders—Ned Foley, Sarah Isgur, and Clark Neily—will be speaking about the reports with NCC President Jeffrey Rosen at a live webinar. You can register to watch for free here.