Bonus: Selecting the President, Today and In The Future (Recast)

This podcast is part of the Democracy Group.

Welcome to the Another Way podcast. I'm Jason Harrow, the executive director and chief counsel of Equal Citizens. Now, we've been off the air for just a little bit of time, listeners, but that's because we're working hard to generate new content, new great conversations about how to reform and strengthen our democracy and end the corruption of big money and politics. And on that score, I don't want to reveal anything, but I think that Larry Lastig is going to have one of the most exciting, coolest, most important conversations we've ever had on this show coming up soon. So in the meantime, we've got something great to tide you over. That is a recast of an episode that appeared in the Democracy Works feed. Now, Democracy Works is a group of podcasts that all share this value of trying to reform our democracy. Above the partisan rancor and the host here is Jenna Spinelli. It features a conversation about presidential election reform and the issue of presidential electors, something we care a lot about here. As many listeners may know, Larry Lessig and I both argued cases at the Supreme Court about it and got decisions in early July. So this episode will feature discussion about that case and then more importantly about the issue of where presidential election reform goes from here. The participants are Jenna Spinelli, the host of Democracy Works, as well as our own Larry Lessig Meredith McGahey of issue one, who even though we were on the other side on this case, they filed a brief not in support of our position on presidential lectures, but we still share the the value of ending corruption and strengthening our democracy. So it's great to hear that and talk about that conversation. Plus Michael Baranowski, a professor of political science at Northern Kentucky University and host of the Politics Guys Podcast. So enjoy this conversation about presidential election reform and stay tuned for more great stuff to come.

A quick note before we get started with this episode. When we recorded on July 22, 2020, there were some severe storms moving through the Washington, D.C. and unfortunately Meredith McGee from issue one lost power about halfway through the recording session and we were not able to get her back on the line before we had to wrap things up. So you'll hear Meredith drop out about halfway through, but we're very grateful for the time that she was able to join us and I think you'll enjoy the spirited discussion that she has with Lawrence Lessig. Hello and welcome to a special episode from the Democracy Group Podcast Network on faithless electors and electoral college reform. I'm Jenna Spinelli, host of the Democracy Works Podcast And I'm delighted to be joined today by three incredible experts for a discussion about the Supreme Court's recent decision on cases involving presidential electors in Washington and Colorado and what broader changes to the process of choosing the president might look like. With us today is Lawrence Lessig, the Roy L. Fuhrman professor of Law and Leadership at Harvard Law School, founder of Equal Citizens, and host of the podcast Another Way by Lawrence Lessig. With us as well is Meredith McGehee, who is the executive director of issue one and one of the nation's foremost experts on Congress and ethics in politics. Finally, I'd like to introduce Michael Baranowski, political science professor at Northern Kentucky University, host of the Politics Guys podcast and all around friend of the Democracy Group Podcast Network. I'd like to start the conversation with you, Mike, by asking you if you wouldn't mind bringing us up to speed on what electors do and why the Supreme Court would be concerned about weighing in on that behavior.

Sure, absolutely. Basically, we can start really. Basically, I suppose, saying each state has a number of electors equal to its representation in Congress with three additional electors for the District of Columbia. Now the state parties choose slates of potential electors and they're free to choose whomever they want, except for the constitutional prohibition against senators, representatives or persons holding an office of trust or profit under the United States. So it's pretty broad. Then voters of course cast their votes in November choosing those electors. And all states but Maine and Nebraska have winner take all systems. Now the popular vote winner is supposed to receive all of the state's electoral votes again, except in Maine and Nebraska. And then in December, the electors travel to their respective state capitals and cast their votes, the real votes I guess you could say. And then the state votes are then forwarded to the the United States Senate. Then in January the electoral votes are read by the President of the Senate, also the Vice President United States in a special joint session. And the candidate with the majority of 270 plus of these electoral votes is officially the President elect. And in the God awful case that no candidate has a majority, the House decides with each state delegation getting one vote. Now 32 states as well as District Columbia voting bind electors, which basically means they require them to be faithful. It is to vote for the popular vote winner in their state. And electors who don't vote for the popular vote winner are called faithless electors. But there are only 15 states that actually impose a penalty or remove faithless electors. And so that is the issue basically that was before the court is whether or not the States are able to, in fact, penalize or remove electors for being faithless.

Right. Well, great. That was a great Civics 101 lesson there, Mike. I could tell you maybe taught that a time or two in your political science classes. Great. So, Larry, I know that you and your colleague, Jason Harrow, the chief counsel at Equal Citizens, you actually argued before the court in these cases, although albeit on zoom or conference call or something, I suppose. What was the crux of the arguments that you made on behalf of the two electors and really what brought this case onto your radar in the first place?

Well, I was interested in getting involved in this case after 2016, where we saw the largest number of. I'm going to call them anomalous, not faithless. Electors cast votes contrary to their pledge in the history of the Electoral College, except for when Horace Greeley died, and so almost all his electors voted for somebody else. And I thought it was important to take the case, number one, to resolve the question outside of an actual presidential contest. It would be a disaster. It would be Bush v. Gore on steroids if the Supreme Court needed to resolve this case in a context where it would really decide the election. Because obviously, however they decided it, people would be deeply skeptical about whether it was law that was driving that conclusion or politics. So we decided we wanted to take the case to get this resolved, and we began to move it through Colorado and Washington to create the opportunity for the court to take it on. The second reason I thought it was important to resolve it was because however it got resolved, it would help America step back and say, is this actually the institution we want for selecting our president? I got into this thinking that the court would decide, as most historians and scholars had concluded, that the electors, in fact, did have discretion. And we believe that if, in fact, that's how they decided it, many people would step back and say, I'm not sure I like the system where electors have discretion. But even if the court decided the way they decided it, people would step back and say, so then what is the purpose of this institution? The Boston Globe editorial page declared, the Supreme Court makes it official. The Electoral College is an anachronism. And so we thought this would also be helpful to just move the debate along. But finally, as the lawyer representing these clients, I was really incredibly moved by what these people did. We talk about them as faithless, and this is why I think it's just not fair to refer to them as this. These were people who, after this election, realized that though the people that had elected them had supported Hillary Clinton. Hillary Clinton was not going to win. And so then they asked the question, well, was there something they could do to actually bring about the opportunity for somebody to be elected who was not necessarily not Hillary Clinton, but somebody other than Donald Trump? And so they began to try to work with Republican electors to convince Republican electors to vote for somebody other than Donald Trump so that at least the House of Representatives would have a chance to confirm one way or the other whether the loser of the popular vote should actually become the President of the United States. Now, it seemed like quixotic when they did it and kind of crazy to imagine they could do it. But Robert Alexander's research, he's a scholar who's written about the Electoral College, extensively, published a book earlier last year about it. His book surveyed every single elector in the 2016 election. He found 20% of the Republican electors acknowledged that they were openly considering doing something different. So the motivation of what they were doing, though, it seems, in retrospect, crazy, they thought was genuine and genuine to bring about a result that was more consistent with the popular vote than the election of Donald Trump was.

Yeah.

And it certainly seems like they take their responsibility very seriously as well and are really thoughtful and kind of diligent in casting that vote. And can you talk a little bit more about who electors are? Are these people that typically come from the party apparatus or, you know, how do they get to be in that position?

So different states have different methods for selecting them, but all states are attempting to find loyal party people to be the electors. The state of Pennsylvania has a very weird system where they basically say to each presidential candidate, tell us who you want your electors to be. Every other state basically makes it part of the party process. In the state of Washington, it was actually chosen at conventions at the local level, which kind of opened up the opportunity for people who were not necessarily just apparatchik of the party, but more interested in the Democratic Party generally. But all of them are driven to try to find people who are genuinely loyal, which all of them were. I mean, every one of our people wanted Hillary Clinton to be the President, United States. She just wasn't going to be. So if she wasn't going to be, then what? What should they do then?

Right, right. And so I want to bring you in here, Meredith. You know what when Larry was. Was saying earlier about, you know, politics deciding and some of the potential ramifications of what might happen if this matter was not settled before November's election, I think that's from my reading of issue one's position, which was actually on the opposing side of the case as it was presented. I know you raised concerns about how this might potentially lead to the influence of special interests and those sorts of things. So what was issue one's role here and your interest in weighing in on this matter?

Well, thank you again for having me. And thank you to Mike and to Larry Lessig for engaging in the conversation. I have a lot of respect for all the work that Larry in particular has done, you know, bringing these issues about how democracy works to the fore. I also know, and I just have to say this at the outset, that Larry's willingness to throw the dice on this court before them on voting and elections decisions is not a throw of the dice I would have taken. The record of the Roberts court in this area of law, in my view, has often been wrong and really kind of heading us in a bad direction. For example, Citizens United, what they did on voting rights, etc. So I probably would not have been as willing to throw this case up to this court and risk what kind of decision we might get, because in the case of Citizens United States, they were presented with one question and then took that opportunity to answer a question that really wasn't even asked. So for pure chutzpah, I give Larry a lot of credit. Look, we looked at this case and had it both. And I will be clear. I'm not a lawyer, I am an advocate. But when we looked at this case, not only did we think that it was important for states to be empowered and that the Constitution gave them these plenary powers, but it was also very clear that state and federal law, as it currently exists, does not have any mechanisms to address what happens if these electors are indeed unbound and they don't match into Kempe finance law. It's not clear what their status is in terms of any of the established ethics laws. They're not covered by a lot of the ethics and government rules. So we could have a situation where the electors kind of got into the bidding project, something we see now with members of Congress, a system that we believe is actually corrupting. And we could see that whole system shift now to the electors. So we felt like that was a dangerous path to go down, that the Constitution was actually pretty clear in terms of giving the states plenary power. And that while there are many parts of the current system of the Electoral College or the ultimate gerrymander of the Senate that maybe you would like to change if you had a shot at redoing kind of a democracy that was Truly representative. This is not the mechanism to achieve that.

Yeah. So what I guess, to bring you back in, Larry, what do you make of that notion of taking the role of the dice with the Roberts Court? Was that something you considered at all in terms of weighing whether or not to get involved and take this forward?

Well, you know, the dice were going to be rolled, assuming we presented this case in the context of an actual division that would decide one way or the other who the President was going to be in either case. So I would rather have the Roberts Court think about this where it doesn't decide the President, than to have the Roberts Court think about this in a context where it does decide the President. And the other important thing to recognize is, I mean, you know, obviously we were on different sides, and so we come to read each other's writing in a particular way. But the overwhelmingly clear point is this case does not change anything that Meredith is concerned about, because even though the court has said states are free to bind, the vast majority of states don't. So if you're really worried about electors being bribed or special interest stepping in and trying to control electors, the vast majority of them still are completely open to being, quote, bribed or controlled by special interests. And so one very striking thing about the whole question about whether this was causing trouble was that however the court decides, there's just as much chance for trouble as there was before. If the court had decided in our direction. I think the likelihood of getting a law passed to address the concerns that Meredith has is higher than it is right now. But either way, our view was we ought to know what the rules are before we get into the election. And unfortunately, this is the only court that we have for deciding what those rules are.

Right.

Yeah.

And that actually leads to something else. I've been thinking about that point about whether saying that states can compel, does that translate into whether or not they will? I mean, have we seen any indication, or do you think we will, that any states will change their existing patterns of behavior based on this ruling?

Well, it takes the ordinary legislative process, and we haven't, you know, I don't think anybody's seen any actual step steps that are being taken, because I think most people, as we do, believe that electors are, you know, people with integrity. There's literally never been even an allegation of an elector in the 24,000 that there have been being bribed. And so, you know, I think in most states are going to think, well, you know, the parties trust these people. We should trust these People, we'll trust them to do the right thing.

And.

And of course, in practically every case, they have done the right thing. And the only times they've deviated, they've either deviated for political expressive purposes. Like, you know, the case that the elector who triggered the law in Washington was an elector who voted for Ronald Reagan rather than Gerald Ford. Washington actually went Republican in 1976, and he did that to signal what he thought the future of the Republican Party should be, not because it would affect anything, because he just wanted to use his opportunity to do that. So it was a harmless deviation. And of course, ours was a much more strategic deviation. But there's only been one elector in the history of electors who ever switched sides in a context where it could have mattered, and that was in 1796. And the reason that guy did it, Samuel Miles did it, was the best possible reason. It turned out he should not have been appointed an elector. The electors were appointed before the election results were counted. And so he said, look, I'm a Federalist, but I shouldn't vote as a Federalist because actually the people of voted Republican. So I'm going to vote for Thomas Jefferson, which outraged people because he voted contrary to how he was supposed to vote. But he did it for the best possible reason.

If I could just on one point there that Larry raised. I mean, while it's true there are a lot of states that don't have, you know, with these constraints or whatever, but, you know, a lot of times when some of this nefarious activity occurs, it's because the incentives have changed. If you have someone who is a. An elector for Trump or elector for Biden, and they're bound to vote for Trump or Biden, why waste your time, you know, trying to bribe them? So, you know, it doesn't mean it can't happen. It doesn't mean that maybe these other states, the 18 that have nothing, should maybe look into this, but it's also not been of a lot of incentives. And, you know, I think the political marketplace is in fact, a marketplace, and people put their money where they think they're going to have the most impact. And so far. Right. That hasn't been the case. But if we had had an opposite decision here, the incentives could have changed.

Right, but be clear about the numbers here, because it's really important to understand whether there's a real threat. There are only seven states, or, I'm sorry, nine states in total, whose rules would have affirmed that you couldn't control their electors. So Washington, Colorado, and seven others. That means there are 454 electors under the existing system right now who are, from Meredith's perspective, bribeable. So 454 is a lot of numbers. And the fact that you would eliminate the chance for 84 to be bribed, you know, that's good work if you're really worried about bribery, but it's not changing the risk of bribery at all. There still are people you could go to who are not bound and who you could say here, this is what I'd like to do. I think there's zero chance of that. I think the whole bribery thing was a complete non issue, but it still seemed to capture people's attention. And I'm sure that that was a concern the court had.

Kind of revealing, if you take that logic. You could also say There are only 535 members of Congress that are potentially bribable. But I think any of one that looks at the current system of what I think most people would describe as legalized bribery does not, like, give us a lot of confidence that just because it's a small group of folks that you could not set up a system that would change the incentives to start creating and duplicating the kind of system that we currently see. And that's, you know, why campaign finance law was put into place to begin with. I mean, if you look at one of the things that was in the brief that Campaign Legal Center Initiative put in is we know that campaign finance laws exist because of the practical difficulties improving criminal bribery beyond a reasonable doubt. You know, as I say, you have to look at the marketplace.

I think we lost you there, Meredith.

Well, maybe while we're waiting for Meredith to come back. Yeah, I had a question, Larry. I read your brief and I was on your side with this. I thought it was very compelling. And, you know, it seems to me in a lot of the back and forth between yourself and Meredith that a lot focuses on the implications. But I guess I was looking at it as sort of a constitutional law decision. And it seemed odd to me that with all of these original intent type folks on the Court, that in the decision, it seems like a lot of justices or they sort of twisted themselves up a bit to try to interpret the word vote, for instance, in a way that seems at odds with what the plain meaning of the word would mean at the time to the people who, you know, wrote the Constitution and at least the Amendment. I just thought that was. I thought that was odd. And so much of discussion focuses on implications as opposed to what the Constitution says. And that just struck me as odd, I guess.

Well, you and I are in agreement that it's an odd opinion. I love Elena Kagan. She was a. You know, she and I started teaching together. She's a. She's a friend. And I admire her and her contributions to the court enormously. But I don't get the opinion from a legal perspective. I get the opinion from. Not a capital P, but a small P political perspective. Because the reality is, what happened in this case is that we walked into that courtroom virtually, you're right, I sat at a telephone in my office making the oral argument. But we walked in with the table set, you know, in part by Campaign Legal center. In issue one also, Rick Hasan, who created this impression that so many people had embraced that this would be a catastrophe, quote, chaos, if electors were deemed to have a discretion that we believe they always had. And I think that really was capturing the fear of the court. And the court was very reluctant to make a decision that, especially right now in the middle of this pandemic and this election, we would up the anxiety about this election. So I think they were driven to bring about the result they got to. What's striking is none of that reasoning is in the opinion at all. Instead, the opinion acts as if it's trying to do a textualist, originalist analysis. But I completely agree with you, Michael. I think it, unfortunately, was very incomplete. Later. Made a lot of. Justice Kagan made a lot of the point that, well, vote could mean, you know, vote the way the Soviets vote, or it could mean vote the way Madison would have thought about it. Which is a. When she asked that question, I thought, well, she must be on our side, because nobody would say that we should interpret vote the way the Soviets would have. But the word that she didn't spend any time trying to explain the original meaning of was the word elector. Because the Constitution speaks of two kinds of electors. One is presidential electors, the other is congressional electors. And congressional electors are just voters. Now, does anybody really believe that the state of Michigan has the power to say, voters for Congress must vote for the Democratic Party, and if they don't, then they are fined? I mean, you know, obviously we understand elector in the context of a voter to be someone with the right of choice, the right to vote one way or the other. And the real question for the court, which the court just ducked, didn't even address, was how can Elector in Article 1 means someone who has a constitutional right to vote one way or another, but an Elector in Article 2 is someone who can be manipulated like a puppet by the state legislature to vote the way the state legislature wants.

One of the reasons that you got involved and kind of took this on was that you hoped it would open the door for a bigger conversation about how this antiquated and not really relevant system works and maybe open the door for some type of change moving forward. And on a. I'm wondering if you still think that that door is open or did the kind of chaos or fear of chaos that's like, underlying the court's opinion, did that also maybe dampen some of the possibility for change?

No. We're very excited about where this project goes now. So we've launched a project called FixTheCollege US, which is going to conduct a series of virtual, because nothing is real these days but virtual deliberations of maybe 100 people at a time to walk them through four questions about the Electoral College. And what our research demonstrates is if you walk people through these critical four questions, practically everybody, literally 80% of people, will come to the same answer about what should be done to reform the Electoral College. Now, you know, the question first of those four questions starts with the simple framing that this past presidential election campaign in the Democratic Party had, which is, are you for the Electoral College or against it? Should we abolish it or not? And that question divides pretty strongly on partisan grounds. And I think what people need to realize is even if your first preference. It's my first preference is that we should have national popular vote. You're not going to get national popular vote through constitutional amendment. Given Any amendment takes 38 states to be ratified. So once you go through that question and you say, okay, well, you're for national popular vote, we're against it. We want to keep the system as it is, the second question basically says, okay, look, one really important dynamic of the Electoral College is that it means the only states that matter to the presidential campaigns are the swing states. I mean, in 2016, 14 states saw 99% of campaign spending. And so that 99% of campaign spending means the candidates cared about those 14 states, didn't care much about states that were not swing states. But what we know about swing states is that they don't represent America. They're older, they're whiter, Their industry is not the cutting edge industry of Texas or California. And so here we've kind of outsourced our election to swing state America, but swing state America doesn't even represent America. And this is solely because electors are allocated on this winner take all basis. So the second question says, well, given that reality, what do you think about proportionally allocating electors? Like, you know, even at a fractional level? And what we found is that most people, when they kind of think about it like that, are like, yeah, why not? I mean, you know, if you think right now under the current system, no Democrat would spend any time campaigning in Montana because you're never going to win Montana, and no Republican would spend any time campaigning in Montana because you already won Montana. Same thing with California, but just the other way around. So all of these states that are not swing states, both Republicans and Democrats in each of these states should recognize that they actually would support allocating electors proportionally because that would make their states matter where their states don't matter right now. The third question is really answered by the Supreme Court. Do we need electors anymore? Given the Supreme Court has basically said they're puppets that have to do as their states have told them to do, we think the answer to that will be, no, we don't need electors anymore. We can just say votes. And the fourth question is something that's very rare, but is really would be kind of catastrophic, and how it might play out, the contingent election problem. If there's no majority in the Electoral College, as Michael very clearly described, it goes to the House of Representatives, but each state gets one vote, which means you could have somebody who wins as a Democrat, but given the way the state's delegations are mixed, it could be that more state delegations are Republicans. So Montana has the same vote as California, and that could lead to a Republican being elected even though the Democrat won. We think most people, when they think about this, think we need a different way to deal with the contingent election. There would be strong support for that. Those three questions added together give a map for reform of the Electoral College. And we think that map developed in this crowdsource like way will really build to be the foundation for a effective movement to bring about, you know, if National Popular Vote Compact doesn't work, then an amendment to bring about some change that would get us very close to what a National Popular Vote compact would be.

You mentioned earlier that wanting to get a decision on this because there's a potential for Bush, you know, Bush versus Gore on steroids. But also, I mean, some people would argue that with a national popular Vote, if you have an election that's decided by a few hundred thousand or even maybe a million votes, well, you could have a Bush versus Gore on mega steroids with legal challenges in almost every state arguing irregularities. And so Forth. And I know that that's one issue that people who oftentimes are against the national popular vote raise.

Yeah. Although I think that if you actually focus on the dynamic of the existing electoral college, the existing system is more vulnerable to manipulation than a national popular vote system would be, or even the system the alternative that I'm talking about, and the reason for that is, you know, with a swing state system, you know exactly which states you have to switch. And look at 2016, 74,000 votes, which you could predict where those 74,000 votes had to be. And so to the extent that the existing system is encouraging external manipulation, it would be better to have a system that would make external manipulation harder because the national popular vote was. Would aggregate the vote across all states. And so you'd have to be close enough across all states to see that you'd have some reason to deviate from it. I think the really difficult challenge with National Popular Vote is that, you know, we have a system which is trying to get a national number, but aggregated through 51 separate jurisdictions, and the states have the right to set the rules in those different jurisdictions. So in principle, the state of California could say, okay, everybody over the age of 60 can vote. There's nothing that would require that they fix it to 18. Or they could have a system that encouraged. Made it very easy for people to register or made it very hard for some people to register in a way that led people to say that it doesn't. It's not fair nationally because California would have more voice than they otherwise would have if we had a national system. And so many people who are resisting national popular vote worry that in the details of these different state by state systems, and there would be so many conflicts that it wouldn't be appropriate or fair to think about the national number as representing anything meaningful. I don't believe in that argument, but I understand it is a persuasive argument that could lead the court even to wonder whether this should be upheld.

And there's this other argument, of course, that we'd move from a system of focusing on half a dozen swing states to maybe 10 metro areas where all the votes are. And so that's concern. I hear a lot on the right that, well, that basically means that everyone will spend all their time in New York, Louisiana, Chicago and a few other places, and the rest of the country will, be, well, flyover country, basically, as far as politics is concerned.

So that is an argument that's made. But I think John Koza, who's the kind of Mastermind behind National Popular Vote has a pretty powerful and effective response to that. And the response is to say, look, look at states that elect governors that are both rural and urban. So a state like Pennsylvania or a state like Wisconsin, and if the flyover theory was correct, you'd say in those states that all of the effort would be to campaign in those urban areas and they would ignore the rest of the state. But what John Kosa's data demonstrates is that that's not the dynamic of politics at all. That in fact you see proportionate to the population spending on campaigning across the state. So that in those states where there are, it is conceivable to have a flyover type election. There's no flyover politics. Politics is throughout the state trying to persuade every voter across the state. And I actually think that's what would happen if you had a National popular Vote. You're not going to win nationally just by winning the urban areas. The United States isn't like that. So there would be a consistent effort to persuade people from other parts of the country. I think more than exists right now, because all that happens right now is the swing states, which in 2016, as I said, are 14. Many people think there are just nine swing states in 2020. So the idea that these nine states are picking our president is kind of terrifying and outrageous. But it's certainly much worse than it would be if it was national popular vote.

It seems to me, though, that I'm the problem with National Popular Vote. It's easy to get enough states to sign on to get when you're far away from that threshold where it would kick into place. But the closer we get, the harder it's clearly going to get. But one alternative, it seems to me that's available right now is the alternative that Maine and Nebraska use. And I mean, I could see where some people would say, well, if more states do that, then that would make it even harder to get a national popular vote, and it wouldn't be quite as democratic. But maybe it's the incrementalist in me. This is a system that we understand that we know works, that certainly is more representative than what we have now. And I guess that's why that's my preference is to maybe see more states go in that direction. I think it's politically easier and again, more tried and true. And I was kind of wondering what you thought about that as an alternative.

Well, I think the problem to district allocation is that that amplifies gerrymandering. So, you know, in a state like Pennsylvania, the state legislature has been so effective in gerrymandering that state that you would have a disproportionate number of electors that would go Republican even if the state didn't vote Republican. And so rather than like, fix on a second best solution that incorporates a very deep problem in our current system, gerrymandering, I think we should point to what the first best solution would be. So allocating electors proportionally even my view is we should allocate electors proportionally at a fractional level. So let somebody go to Montana as a Democrat and win 45%. I think that means they get 1.32 or 3.5 electoral votes from Montana. If you do it at a fractional level, then there's no chance to amplify any unfair gerrymandering that might have been built into the drawing of the original districts in Congress.

But do you think that makes it more likely that no candidate will win a majority? I mean, third party candidates might be able to. Libertarian Green Party, I guess, would be the main ones. And that it could end up with an issue where we're back on that, the House deciding with one state, one vote, which is, as you pointed out, hugely problematic.

Yeah, I mean, that's right. I think that's a really important concern. Although the particular solution that I've seen developed that kind of builds on the type of changes we're talking about would say you divide the electoral votes in a state between the top two candidates, however the state decides to determine the top two candidates. And that would encourage states to adopt something like ranked choice voting. So that you would then say, okay, you know, go in and vote for Ralph Nader if you want, but then tell us who your second choice is. And I'm sure that in 2000, if that were true, we would not have seen George Bush as president. We have not seen an Iraq war. We would have had climate change legislation like, the list is endless. But the point is you would allow the diversity to be expressed in a two person way and allow people to express their first preferences in a way that encouraged more diversity among ideas. So I think that solution would minimize the chance of a third party candidate actually throwing it, you know, forcing a contingent election. It wouldn't eliminate it. But we've seen nobody close to that at that level, given the recent history of it.

So before Meredith dropped off, she unfortunately, she had a storm come through and she lost her Internet access, so she wasn't able to come back in here. But I want to pay up on something. We were talking about earlier with regard to special interests and how this might play back into some of these reforms we've been talking about. So you guys have just been very articulately talking about some of the paths forward for electoral college reform. And I'm just wondering, are the forces that want to keep things the way they are, are they also kind of keeping an ear to the ground in these arguments and forming their own rationale about why everything should stay the way that it should? Or what does that side of the House look like to the extent that, you know.

Well, I think that there's no chance of electoral college reform unless Texas goes purple in 2020. And I think there's a substantial chance that Texas will go purple in 2020. If Texas goes purple on the direction to going blue, the Republican Party is going to realize that under the existing system they will never have another president. If we keep winner take all and Texas goes blue, that's the end of the Republican Party as a presidential contender because Texas is so huge and a built in advantage to the Democrats would be overwhelming. So I think at that stage there's going to be an interest to think about reforms that might actually bring about a fairer, more competitive system than the existing one does. The real fight though that I think exists about this issue is not so much Democrats versus Republicans as insiders versus outsiders, because insiders, and by this I just mean people who run presidential campaigns are terrified about the idea of running a national campaign. I mean, it's hard enough to run a 14 state campaign, but the idea of running a national campaign I think just terrifies them. And they, and they kind of like the system that simplifies the problem to just a handful of states, you know, but their preference for a simpler way of running a presidential election should not be allowed to defeat the objectives of a real presidential election, which should be to figure out the candidate who actually represents the interests of America as a whole, the best. So I think ultimately those reasons aren't going to be strong. And if we create the political opportunity to motivate this decision, then I think that that opportunity will have enormous potential in the next five years.

I wonder, I want to pick up on something you mentioned earlier about the campaigning and the complexity of running, say, potentially a 50 state campaign. This, it seems to me, ties into something that I know was an issue that you're very passionate about and that's campaign finance. And with campaigns costing in the low billions now, I can only imagine what the push for cash would be. And one potential, I wonder one potential Unintended consequence of a truly national campaign could be that that 1/10 of 1% becomes even more important. And that's certainly something I know you don't want and sure don't want it either.

Yeah. But I think that actually the, what some would think of as unintended consequence, let me just be honest, it's my intended consequence is that it would build support for public funding. Again, like if the it not only support for public funding, but it would also increase the role and significance of the state political parties. Because you know, if you're running, if you recognize you got to run a national campaign and it's going to be so incredibly expensive, you're going to more willingly opt into another system that was in place for every election between Ronald Reagan and Barack Obama then under the current system now where they believe they can run it without having public funding. So that's number one. But number two, state parties become much more important. And I think that's a good thing because what we need is less entrepreneurial politics where it's all about the individual or the ego of what one person and more about building coalitions that are actually party based coalitions. And so I think that consequence too would be a good one. But those would be the things, the reasons why I think people would resist it.

All right, well, gentlemen, I think we're going to have to leave it there. Want to thank both of you.

Jenna, can I just add one more thing? I was very sorry that Meredith was forced off by acts of God. Because, because I thought, I thought there was a very important moment of potential agreement that we should make sure is clear. I mean the really great work that issue one does and has done, and I know Meredith has been in this fight forever, is to fight against the corrupting influence of money inside of Congress. And so we were at this point where we were talking about whether a small number was something to be happy about or sad about. So I was saying there's still 454 potential bribed people. And she was saying, well, you got 535 people who are effectively bribed by the system right now. I want to say to that, Amen. Absolutely, absolutely. And so we don't have any disagreement at all about the core problem of the way Congress was functioning. The only small point that I was trying to make, and in the end it doesn't matter given the way the court resolved it. But the small point I was trying to make is there was no reason to fear us winning because there's no way that us winning would have increased the chance, the real chance of bribery, given that there would be 454 people who could be bribed regardless of whether we won or not. So there was a small point about the marginal difference of us winning and us losing, which I was responding to. I wasn't meaning to undermine a credit question at all, Meredith. And issue one's incredibly important work in supporting reform of the institution of Congress more generally.

Yeah, no, and I think that's a good point. I'm glad you brought that back up. I think that even though both organizations were on opposing sides of this case, as it were, I think there are, as we've been discussing, lots of commonalities in your goals and all of those sorts of things. And I think everybody, all of us on this episode, on this call, on this podcast network, want a stronger, healthier, more inclusive democracy and just maybe have some differing ideas sometimes about what exactly it looks like to get there. So thank you again to Meredith, who unfortunately had to drop off. Thank you, Mike, for your great questions and for helping set the stage. And thank you, Larry, as well for your insights and for your work on this case. On behalf of the Democracy Group Podcast Network, I'm Jenna Spinelli, and thank you for listening.

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