The Volokh Conspiracy

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More on the National Constitution Center "Restoring the Guardrails of Democracy" Project

Video of presentations by the leaders of the Conservative, Libertarian, and Progressive Teams. Plus, my thoughts on a comparison of the three reports by Progressive Team leader Ned Foley.


Earlier this week, National Constitution Center published its  "Restoring the Guardrails of Democracy" project.  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 (written 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 "Ned" Foley and Franita Tolson). I offered some thoughts on the similarities and differences between the three reports here.

Since then the NCC has posted a video of an online event where the three team leaders discussed their respective reports with each other and NCC President Jeffrey Rosen.

It includes a lot of interesting material on points of agreement and disagreement. Most notably, it turns out that all three groups agree on the need to fix the Electoral Count Act, in ways outlined most fully in the Progressive report, but also discussed in ours. The conservative report did not cover this topic, but team leader Sarah Isgur notes their agreement in response to questions in the video event. On this issue, there is fairly broad cross-ideological agreement among experts that goes far beyond the authors of the three reports. This may be the one flaw of American democracy that has a simple and  obvious legislative fix that can be implemented swiftly.

In a post at the Election Law blog, Team Progressive leader Ned Foley has some additional thoughts on similarities and differences between the reports:

The three reports produced separately by these teams had some significant overlap. As was noted at the town hall discussion of these reports, the recording of which is available, all three teams embraced the urgent necessity of Electoral Count Act reform.

More broadly, the reports collectively diagnosed three distinct threats to democracy: election subversion, polarization, and disinformation. There was consensus on the need for structural reforms to ameliorate the problem of polarization, although less consensus on what specific structural reforms would be best for this purpose. By contrast, there was definite disagreement on how to handle the problem of disinformation, with one report willing to consider the possibility of carefully crafted criminal prohibitions against deliberately orchestrated falsehoods designed to negate valid electoral outcomes, while another report specifically rejected anything along those lines….

One additional point of agreement was the need for improved civics education.

I agree with Foley's excellent summary above, except for one point. The libertarian report doesn't cover the issue of civics education, unlike the other two which both suggest reforms they hope will improve it. Speaking purely for myself (not the entire libertarian team), I doubt that much progress can be achieved on this front, for reasons discussed in detail in Chapter 7 of my book Democracy and Political Ignorance. Instead, Part II of the Libertarian report suggests we can more effectively mitigate the dangers of political ignorance and misinformation by expanding opportunities for people to "vote with their feet." Foot voting creates better incentives than ballot box voting for people to seek out relevant information and use it wisely. I suppose you can probably guess who was the primary author of Part II.

Foley's post includes some skepticism about the foot voting section of our report:

Even more broadly, some of the reports addressed potential reforms beyond those relating to the conduct of elections. The relationship of Congress to the presidency was a matter for consideration, and also the idea that in a federalist system changes might be made to make it easier for citizens to vote with their feet, so to speak, if they didn't like the laws or policies in the state where they currently reside. (I confess personally to some skepticism about the practical realism of this "foot voting" idea for many citizens: it's not so easy to switch jobs for some citizens, and spouses will live together even if one of them would prefer to relocate elsewhere.)

This problem of moving costs is a real one. But, as the Libertarian Report points out, it is greatly reduced if people are empowered to vote with their feet in the private sector (as with school vouchers), and between local governments, as well as between states. The former two types of foot voting often don't require switching jobs, or—in the case of private-sector options—even changing residences. In addition, as we also note in our report, seeking better job opportunities is itself often a form of foot voting, as variations in public policy often have an impact on the quantity and quality of jobs available in a given area.  Moreover, moving costs have to be weighed against the extreme difficulty of having an impact on the policies you live under through ballot-box voting or other forms of political "voice," which for most people amounts to only a infinitesimally small likelihood of success. I cover moving costs and their significance for foot voting in greater detail in my book Free to Move: Foot Voting, Migration and Political Freedom.

The issue of spouses and other family members constraining each others' foot voting options is another topic I cover in the book. As I point out there, family members have much more chance of influencing each other's decisions than they do of using voting or lobbying to effectively change government policy. Moreover, people tend to marry those with similar values and preferences, which makes reaching agreement easier. Given a wide range of foot-voting options, there's a good chance that a married couple can find one that fits both their needs relatively well. Success is by no means certain, and disagreements about where to live sometimes even lead to divorce. But, on the whole, family decisions on foot voting offer most people far better odds of a happy outcome over which they have real leverage than ballot-box voting does. And, in a worst-case scenario, divorcing an incompatible spouse is usually more feasible than ridding yourself of an incompatible government—unless you can divorce the latter through foot voting!