S5E06: Overturned Tables: Representativeness: Nick Stephanopoulos

This is Larry Lessig.

So there's an annoying argument that you've no doubt come across if you've ever spent any time debating democracy online. The argument gets expressed in an extraordinary non sequitur. It is, quote, america is not a democracy. America is a republic. End quote. Now, I say non sequitur because, as our framers use the term, a republic is a certain kind of democracy. It's a representative democracy. So to say a republic is not a democracy is like saying a Ford truck is not a truck. Maybe some people say that I don't know enough about trucks to know really what qualifies as a truck amongst truck people.

But I would think a Ford truck

is a truck, just as I would think a representative democracy is a democracy. But the challenge in that term is the word representative. Representative of whom and how? The British government in 1776 thought it adequately represented the American colonies, even though no American colonist could vote for any representative in Parliament. That fact notwithstanding, the British thought they could virtually represent America, just as most American men thought they could virtually represent women before 1920 gave women the federal right to vote. That example is meant to suggest the point of the conversation we're going to have today. What representative means has always been contested. And as we understand the term differently, our understanding of what a representative democracy requires has evolved. We are, as our Constitution puts it, a more perfect union today than we were in 1870 or 1820, because we are a more representative democracy today than we were at either of those two points, or maybe at any other point in our past. Now, my own writing has played with this term represent as well. My 2019 book, they Don't Represent Us, spoke both about the way that they, in the sense of the institutions of modern American democracy, defeat the idea of representativeness through exactly the mechanisms we've talked about in this season, money and politics, but also gerrymandering, vote suppression, the Electoral College, the filibuster. But it also argued that we don't represent us in the sense of the views that we express as citizens, driven as they are by a media committed to driving engagement, don't actually represent what we actually believe, at least if given the chance to understand and deliberate on the issues we're being pressed to represent the person I speak with today. Harvard Law Professor Nick Stephanopoulos has a more sophisticated and more interesting conception of representativeness than this. In his new book, Alignment A Theory of the Law of Democracy, published we're hoping next year, 2024 by Oxford University Press, Nick describes a conception of representativeness that he believes we and the courts should embrace as the standard that guides how we build or craft the institutions of our democracy. In this conception, the core objective of our law, of our democracy, should be to achieve alignment between the political system and the people it seeks to represent. As you'll hear in this episode, there are features of our current democracy that are obviously flawed and from this alignment perspective, and there are features that seem flawed but are not as importantly flawed. From this perspective, Nick's account is a powerful conception that should, in my view, at least, guide both democratic and legal policy. At least if we could return to sensible policymaking. Nick is a graduate of the Yale Law School. He has an MPhil in European Studies from Cambridge University in Cambridge, England. After clerking on the Ninth Circuit Court of Appeals for Judge Raymond Fisher, he practiced law at Gentry and Block, and then he joined the faculty at the University of Chicago. And then I was extremely happy when both he and his wife left Chicago to help form a democracy practice at Harvard, with Nick as a regular democracy academic and his wife, Ruth Greenwood, leading an incredibly successful voting rights clinic at the law school. Enjoy the conversation.

So, Nick, thank you so much for talking to us. I've read all, but I guess the last two chapters, which you hadn't sent me yet, of this book in progress, and if you published it today, it would be extraordinary. So I'm going to assume we can just take the book and work with it as it is and talk about the ideas inside it. So I think I want to start by asking you to try to explain to, as the Chief justice would put it, an intelligent man, quote, unquote, exactly why there's a need for a theory of democracy. I mean, you know, most people kind of look at democracy and they say, well, we have elections and ideally we figure out who got more votes than the other person and that person wins. And when you add that all up across the country, then that's what a democracy is supposed to be. What is that naive view missing?

Yeah, thanks. It's great to be here having this conversation with you. So the naive view of democracy is missing that we care more when we talk about democracy, we care more about things than just elections. We care about what the actual outputs are of the political process. We want to make sure not just that people have a chance to vote, but that ultimately what the government does reflects what people want. And elections are a powerful tool for accomplishing that. Alignment, what I call alignment between governmental outputs and popular preferences. But on their own, elections aren't necessarily enough. Elections can be. Be subverted. They can be distorted in all kinds of ways that reduce the potential aligning influence of elections. And so the contribution of the book, I think, is to say that elections are great, but an even more fundamental democratic value is this congruence between what the government does and what people want the government to do. And we shouldn't forget that ultimate value of congruence. And once we've recognized it, it helps us to decide all kinds of debates and disputes about the elections and electoral processes that we use in our system.

Okay, so let's start with an idea that you don't talk about, but is out there. As you know, Van Raybuch has a book called Against Elections which says we ought to be getting rid of elections and just having sortition or the random selection of representatives. I think there's a lot of reasons obviously, to be skeptical about that as something to jump into, even though I think it's interesting in parts to imagine adding it. But just for conceptual clarity, if we had a random representative sample of people who were selected to be our representatives, how would that align, or not, with the conception that you're advancing here of alignment as the fundamental value we ought to be thinking about, about fitting our system too?

Yeah, I'm relatively favorably inclined toward ideas like sortition. So if we had real random assignment of all of our governmental officials, we would have representatives that look like the electorate in partisan terms, in ideological terms, in demographic terms. We would still want to know what are these representative officials doing once they're in power. The mere fact of having representative politicians or officials, it wouldn't guarantee that policies are ultimately aligned with what people want. But I agree with the thrust of your question. My commitment to alignment makes me open to. To alternatives to elections. And sortition is a method that has some appeal as a way of guaranteeing the representativeness of officials along a host of different dimensions.

Okay, so this approach, as you frame in the book, is a structuralist approach in the sense that it's looking at the overall consequence of the system of democracy, not on the particular individual rights of particular participants inside of the democracy. But as a structuralist, you're pushing a really fundamental particular view of structuralism that's going to advance this concept of what you call alignment. Why don't we start by you just in the simplest way describing what you would mean by a concept of alignment here, and then we're going to move into the subtle differences or the subtle dimensions or axes I think, of alignment that one would have to fully consider. But just as the nub and the intuition. What is the problem? What is the ideal of alignment here?

Yeah, the core idea of alignment is that what the government does reflects what the people want the government to do. And the conceptual appeal of alignment comes to some degree even from just the word democracy. Democracy is the fusion of two different ideas. Deimos being the people and Kratos being the government. So the core idea of democracy is that the people rule. And a very closely aligned idea to the people ruling is that the people get what they want from the government. And so alignment flows directly from that almost semantic understanding of the term democracy. And it's consistent if one wants to be more sophisticated and look at lots of, of theories of democracy out there. Alignment is a point on which many different perspectives on democracy agree. It's not only associated with one particular camp, one particular theory on democracy.

Okay. But the concept of alignment can be thought of from a range of different perspectives. So you talk about in particular four kinds of alignments. Majoritarian, collective, representational, and policy. So these are subtle flavors or subtle differences on the core concept. How would you, why don't you just introduce the difference among these four?

Yeah, and I would say that there are even more than four. There are three axes, I think, three critical axes along which we can define and classify the concept of alignment. So one of those has to do with the unit we're talking about. Is it the whole jurisdiction, the country, the whole state, or is it a particular district? So we can distinguish between district specific and jurisdiction wide alignment, Another axis has to do with whose views are we trying to reflect? Are we trying to reflect the views of the median voter? The median position, of course, is the only position that's guaranteed to be part of the majority on a single axis. And so majoritarian alignment refers to alignment with the views of the median person. We might also more ambitiously care about how governmental outputs align or don't align with all people's preferences. We might want to minimize the distances between governmental outputs and what all people want or think. I use collective alignment to refer to that more ambitious kind of alignment. Then finally, there's a question of what outputs are we talking about? The government does many different things. The most basic thing elected officials do is they have a partisan affiliation. As we can talk about partisan alignment, elected officials also take stands. Legislators in particular cast votes in the legislature. And so we can talk about representational alignment. And then ultimately, and I think most importantly, the point of government is to make laws, to enact policies. And so we can talk about policy alignment between what the government finally does and what the people want the government to do.

Okay, and you describe your. You'd say you tip your hand. The most compelling version of alignment theory is going to be jurisdiction wide. That's the specific political unit. Collective, that's majoritarian or collective? Collective, minimizing the gap between the representative and the views of everybody. And policy alignment, focusing on the ultimate results of policy. I feel like two of those are compelling to me. Jurisdiction and policy alignment. I want to understand a little bit more why collective alignment versus majoritarian makes sense. So imagine a public that has a relatively normal distribution of views and then a bunch of crazy Nazis far to the extreme. Collective alignment would make sure that you're accounting for all of the views. So the net position might be far to the left or right, however you conceive of that, relative to the views of everybody else. So there's this potential distorting effect by extremists here that majoritarian alignment wouldn't necessarily affect. Is that right?

That shouldn't be right if we're looking at a single axis and a single jurisdiction. So the median point should always be the point that minimizes the sum of the differences between the output we're talking about and the positions of all the different voters in the distribution. So the distinction between majoritarian and collective alignment only starts to matter once we're looking at either unusual distributions of opinion or multiple jurisdictions and we're comparing alignment in country A to country B. But if we're just dealing with the simple context of a single jurisdiction, a normal, normal distribution, and a single axis along which we can plot people's views, the distinction collapses between majoritarian and collective alignment.

Okay, so in what we think of as a normal case between the two, it's not going to matter. And then the only question is how close we are to the normal case. And it could matter depending on what our distribution of our society looks like. We start with recognizing the simple idea of democracy actually doesn't necessarily produce a democracy that makes it so. What the government does is what the people want. And the conception that expressly tries to assure that what the government does is what the people want is this conception of this concept of alignment. And then the hard question, obviously then is how are we going to implement the conception of alignment? You start obviously with obviously true point that the conception of alignment or the concept of alignment isn't, as you say, quote, alien to our legal order. So that's good. It would be a bad thing if it were completely new or completely rejected or foreign to our legal order. But you're quite forthright about the difficulty of imagining courts in general, I would say, or our Court in particular, actually advancing this conception to change the way elections are actually regulated. So the courts in general point, you say for courts, you say, quote, courts are blind to misalignment. And that could be for structural reasons and for substantive reasons, but the structural reasons could just be that there's just nobody in particular who has enough of an interest to be able to challenge misalignment. So the Court is not a good place to actually try to address it. But the more particularly troubling from my perspective problem with courts is our particular Court, the Court governed by Chief Justice Roberts, who has not only. The Court has not only refused to fix the dimensions of misalignment that you have identified, in particular partisan gerrymandering, which the Court has basically said is never possible to attack, and voting restrictions, which, as you know, to the Roberts Court, has never ruled in favor of a plaintiff disputing voting restriction. And so, as you say, you could say, well, this is just because the Court is just trying to be passive and not engage, not actively engaging here. But of course, the area that I'm focused on so primarily is an area where the Court has been extremely activist in the context of speech, and so it's intervened in ways that only make the system less aligned to the structure. So I guess one question is like, I mean, you might think there's a purely partisan account of Chief Justice Roberts, which I think there's lots of reasons to be skeptical of, that there are other Justices you might be more willing to say are partisan motivated, but not necessarily Roberts. What do you think really explains why Roberts is particularly oblivious to the distortion which this whole suite of jurisprudence is creating for representative democracy in America?

Yeah, great. I'm not sure that Roberts dislikes the consequences of this jurisprudence. The fact that there is significant pro conservative misalignment in modern American politics, and that this is fostered to some degree by the Court's actions on partisan gerrymandering and voting restraint and campaign finance regulations. It might not be consciously driving Roberts actions in this area, but I don't think it hurts that this is the impact of his jurisprudence. Putting aside those kinds of cynical accounts of what's driving Roberts, it is true that existing constitutional text and judicial doctrine doesn't clearly impel the Court toward recognizing and trying to stop misalignment. So I do think Roberts cares a lot about precedent. And even when you look at Pre Robert's Court Precedent, a lot of it is not as conscious as it could be of the importance of alignment and the need for courts to step in to promote alignment. So existing law, I think, is one driver of Roberts actions here. Another is that I think Roberts in general doesn't like legal theories that depend heavily on empirical evidence. And he doesn't like legal theories that promise to be disruptive, that promise to call into question many of our existing legal and political arrangements. And if you took seriously an alignment theory, it would have both of those features. You, you really need empirical evidence to determine which electoral regulations are aligning versus misaligning. Roberts doesn't like that. And there's a lot of misalignment in modern American politics. And so if you really accepted the principle that courts have a responsibility to step in and strike down the practices that are causing this misalignment, that would require a lot of judicial activity and a major upheaval of the status quo. And I don't think Roberts likes either of those things. So I think there are cynical, but also non cynical explanations for the pattern of decisions that we've seen on the part of the Robbers Court.

Yeah, so I want to build on that cynicism about the non cynicism account in not the case that finally ended any efforts to attack partisan gerrymandering, which of course you and your wife had been pretty central in that effort. In the case before that, in oral arguments, Roberts had signaled his deep skepticism for any doctrine that relied on empirical evidence. As he put it, whenever a case would be decided, the intelligent man on the street would be told it's decided for reasons to do with statistics. And he said, that's a bunch of baloney, that man would think, and he would think it must be because the court preferred one party over another. I do think that there's something real there to be anxious about if you're a court, especially a court recognizing that the full sweep of interventions that this theory would invoke would tend to favor in lots of contexts, one side over the other, relative to the baseline we're starting with right now. You can imagine the court fearing a world where we have 10 years of press attacks on the court, saying what the court is doing is just trying to put a thumb on the scale to favor Democrats. That's a real concern here, isn't it?

I don't think it's completely insignificant, but you mentioned the partisan gerrymandering context, which is one of the areas where misalignment is most obvious. And this is the context where Roberts said those things about baloney and gobbledygook and the like. I think it's clear that he fears blowback and criticism if the court were to step in on behalf of one party or another and strike down gerrymanders. But we've seen federal district courts do this repeatedly before the court terminated this cause of action, and we've seen state courts do it repeatedly after the court terminated this cause of action. And I don't think there has been significant, even notable political blowback for the courts that took those steps. You had conservative courts in blue states doing this. You had more progressive state supreme courts and purple states doing this. And political elites were aggravated and in particular sitting legislators that were enjoying the fruits of their gerrymanders were irritated with the court. I don't think there's any evidence that there was widespread popular uproar over judicial anti gerrymandering decisions in New York, Maryland, North Carolina, Pennsylvania, Ohio and so on. So I think Roberts is probably oversensitive to the risk of popular backlash here. The people don't like gerrymandering. The people get the argument that elected officials aren't going to solve this on their own, and the courts have a role to play in stopping this self interested misaligning activity. Maybe things would be different in other electoral contexts, but on the whole, I'm not very sympathetic to this argument that courts can't act in this way because of the uproar the opposition that they're aligning with pro Democratic interventions would supposedly incite.

Yeah, that's got to be true in general, although there are particular cases, for example Wisconsin right now, which might actually feed this recognition because obviously we had an election and the election has now shifted the control of the court. And it seems pretty clear there might be a consequence there from my own view, as the beginning of your book makes clear, a consequence in a pro democratic way. Because Wisconsin is a classically purple state in the sense that it's very small difference between Republicans and Democrats voting statewide. But because of gerrymandering, it's a radically Republican state in the legislature. No doubt if you ended gerrymandering in that state, you would have a more representative or aligned legislature. But I guess it'll be hard to see that happen and have people not think to themselves, okay, here's an election that leads to overturning the results and that seems to be a politically motivated result.

I'm sure that will be the perception among some people in Wisconsin. I'm sure it's going to be the Republican narrative The conservative narrative. I would be quite surprised if a majority of people in Wisconsin disapproved of an eventual court decision striking down the Wisconsin gerrymanders because they thought it was too political of a decision. I think, on the contrary, if and when the court steps in in Wisconsin, there'll be widespread popular support for having more competitive, fairer maps in the state. Also, once we get out of the category of partisan gerrymandering, there actually aren't many circumstances left where my theory would call for significant judicial intervention. In the campaign finance context that you mentioned, the theory would support just upholding campaign finance laws, leaving campaign finance laws alone, getting the courts out of the picture. And that's popular on its own terms. Then it's also a pose of judicial passivity, not judicial intervention. So I think campaign finance doesn't fall into this area where we worry about the optics of courts stepping in aggressively. I mentioned in the book that a lot of voting restrictions are criticized by advocates who want voting to be easier. But for the most part, the empirical evidence does not suggest that major contemporary voting restrictions are misaligning. Photo ID laws for voting, for example, appear to have basically no consequences for turnout or for which party is benefited. So you wouldn't have many, if any, cases of courts stepping in to strike down voting restrictions because of the supposedly misaligning consequences of the voting restrictions. I don't think that my theory is a generally pro interventionist theory, no more so than what the court is already doing, striking down every campaign finance law under the sun, for example, and striking down half of the Voting Rights Act. It's just a theory that calls for different interventions by the courts, not necessarily more or less intervention than we have under the status quo.

Okay, so we're going to go into the campaign finance a little bit deeper. But that's a great point that if you just step back and ask how many times will the public have to believe the statistician, or how many times you have to believe that the statistician is not just a Democrat in statistician dress or a Republican in statistician dress. It's a good point to say the hardest context for them to believe so far, at least in the story, is gerrymandering. And there's a baseline hatred of all parties, of all people for gerrymandering. So it's hard to see that to motivate what, what Roberts is concerned about. But before we get to the particular specific, the context, I think it's really valuable the way you've tried to outline other strategies for bringing about alignment. And one is at least legislative. Let's just focus on Congress. States also have their own power here and then non state actors. So in the legislative context, one striking thing about this jurisprudence for federal elections is that though Roberts is quite skeptical of the court doing much, Roberts is quite eager to allow Congress to do a lot to address these problems. In the Rucho case, which ended partisan gerrymandering as a cause of action, he expressly said you could just use the elections clause to address it for the federal in the federal context. So if you could win Congress to the idea of alignment, what are the top four things or five things that Congress could do tomorrow that would substantially increase the alignment of our political process with the views of Americans?

Yeah, and I agree with this point that congressional intervention in some ways is a lot better than judicial intervention. You get one act of Congress, you significantly change electoral practices all around the country. You no longer have to rely on people piecemeal, expensive one off litigation. So there are many reasons to prefer, I think, congressional aligning activity to judicial aligning activity. So I think my list of congressional policies wouldn't be that different from the policies that were in the big omnibus electoral reform bills that the House passed and the Senate came close to passing between 2020 and 2022. Redistricting reform is an easy one. In one stroke, Congress could require all states to use independent commissions for their congressional redistricting, maybe also for their state legislative redistricting. There's pretty good evidence that maps drawn by commissions have lower levels of partisan skew than maps designed by sitting politicians. So in one stroke, Congress could follow the lead of many foreign countries and get rid of much of the misalignment caused by gerrymandering. Number two, I would probably rank campaign finance reform, which I guess we'll talk about more later. There's a lot of evidence that campaign funding coming from wealthy individuals in particular is misaligning. The Court's jurisprudence here places substantial obstacles in the way of everything Congress might want to do. But I think there's a lot of promise in the idea of lavish public financing for elections in a way that dilutes the misaligning impact of individual campaign funding. You know, the rich individuals could still give and spend as much as they want. But if you have tens of billions of dollars of public campaign funds, the impact of all of that private money would be much less than it is right now. And there was public financing included in H R1, I would support much more lavish public financing than that. I mentioned before that voting restrictions don't appear to be all that misaligning. And by the same token voting exp expansions don't appear to be all that aligning. Nevertheless, I think there's probably some aligning benefit to making it easier to vote. And Congress could make it much easier to vote in federal elections. HR1 would have done that by requiring more early voting, more absentee voting. It would have made it harder for states to purge their voter rolls of properly registered voters. It would have reduced states ability to pass photo ID laws and other voting restrictions. All that I think is quite good, even though I'm a little bit skeptical of how aligning it would it would ultimately be. I guess I would say that those are all reforms that were in HR1. I think proportional representation is a more aggressive reform that also promises to have greater aligning effect. With proper forms of pr, you basically guarantee good representational alignment. You basically make significant partisan distortion of the legislature impossible. Even commissions can't guarantee that. As long as you have single member districts there's going to be the possibility for some skews in representation. And so I would love it if Congress either made it possible or even mandated the conversion to one form or another of pr. I think that would go beyond just curbing gerrymandering in terms of promoting alignment.

Yeah. So the Fair Representation act, which would create multi member districts with ranked choice voting has the wonderful effect of really making borders or districts not really matter much because there's been great statistical work to demonstrate that you can have widely varying districts but still produce the same proportional outcome. State of Massachusetts is a perfect example of this. We have no Democrats, we have no Republicans in Congress. Not because the legislature is good at gerrymander. Nobody could draw districts that would get Republicans in Congress given the distribution of Republicans throughout the state. But if you had multi member districts in Massachusetts, Republicans would get 30% or maybe 40% of the representation. And that would reduce the incentive to play the games and gerrymandering obviously and produce much more effective results. So I think one really important point here that I think people often miss. Given our obsession with the court and as law professors, that's maybe understandable. What you've said is really important. We could achieve a huge proportion. I don't know how to get the percentage, but let's say 80% of what we need simply by Congress carrying through on the kinds of reforms that they came so close to achieving. And literally in the Senate. If Manchin had signaled his willingness to exempt, it was by Then the freedom to vote act from the restrictions of the incredibly misaligning filibuster procedure, we would have gotten it. I mean, we would have had an enormous effect, but we missed that. And it's not clear whether that's on the horizon. Okay, so that's important political intervention. And then you also talk about non state actors intervention, like how people who are not inside of politics could nonetheless help politics to be more aligning. What would those be?

Yeah, so those are more experimental ideas that there's some supportive literature and I'm open to them, but I don't know yet how impactful they'd be. So one idea is grounded in a number of findings that elected officials are responsive to who contacts them. Their views of public opinion are heavily shaped by whose writing letters, writing emails, calling their offices. And at present, elected officials are often disproportionately contacted by conservative constituents and conservative interest groups. And so one thing that every one of us could do that would have some aligning effect in the aggregate is just reach out to your congressperson, your senator, your local elected official, and say what you think about different issues and what you want the elected official to do. This wouldn't be revolutionary. Plenty of elected officials are happy to ignore all sorts of indicia of constituent opinion, but I think it would have some effect on the margins. And this doesn't require any court decision or any legislation. The second idea is kind of related to this. At present, elected officials have very skewed perceptions of what the public wants on various policy matters. And the perceptions are strikingly distorted in a conservative direction. So even Democratic politicians think voters are more conservative than voters really are. Republican politicians massively, massively overstate the conservatism of the public. And so what I would love to see would be a website, a center that just reported actual public opinion taken from surveys at the level of the district, the state, the town, what have you. For the most part now, politicians don't know what is the true level of public opinion in their jurisdiction on a given issue. And there's some new really exciting empirical techniques, gobbledygook techniques that allow accurate estimates of local public opinion to be determined from national polls. So from every single national poll, you could take it and produce pretty good state level and even district level estimates of opinion. And there's some good studies that show that if you give this information to politicians, they start responding to it to some degree. Again, this wouldn't be night and day, wouldn't revolutionize alignment, but this is a relatively simple project. That a single ngo, a single center could do, and it would have some aligning benefit, I think.

Okay, so this brings out a dimension of this that I want to make sure we're focusing on. And that's basically like, who is this public? You're very clear that you're not really interested in alignment on particular issues. You're interested in a more overall ideological alignment. And part of that is, I would suggest, motivated by skepticism about public's view about any particular issue. The public's a busy bunch of people. They can't focus on every issue that we hire our politicians to focus on. So they're not going to have really informed views about a bunch of things. And the idea that you would guide policy on the basis of a prediction of what a poll would say about some question of climate change regulation just doesn't seem to make much sense. But there's a more fundamental question that these interviews have been trying to focus on, and that is a really important difference between two periods in recent American political history that the data kind of straddle in interesting ways. And the two periods would be the period of what Marcus Prior refers to as broadcast democracy, where our sources are relatively narrow in its television. And even as late as 1977, something like 75% of Americans reported getting their news from three networks. And then the period that begins with cable television and then is exacerbated by the Internet, where the public is in much more fractured publics, bubbles, and doesn't really actually ever hear the same story that the other half of the public might hear. And so the two dimensions of this problem are, number one, the extent to which the public can be expected. Expected to know anything. That's not to say they're stupid, but they are technically ignorant. They just don't know the facts. And number two, to the extent we move into these partisan business models where the platforms profit from turning us into ignorant people who hate the other side, the capacity of the public to actually have a judgment that's meaningful about any of these questions begins to fall. And so if we see the public and recognize these dimensions of contingency, I wonder what the future of alignment looks like when the presumption that there's a public we're trying to align to begins to be particularly contingent.

Yeah, I'm with you. That the less informed the public is, the more you discount any faith in the public having informed real beliefs about policy, the tougher it becomes to believe in alignment as an ideal. I'd say, though, that as uninformed as people may be about particular topics. They do tend to have real overarching ideologies. So it's not incoherent to speak of people's liberalism or conservatism or libertarianism or socialism or what have you. Look, I know for myself on many bills that Congress or my state government considers, I have no informed opinion, despite being a professor, one of the more informed people out there. But I do have overall ideologies on public policy and politics. And I don't think it's too much of a stretch to ask for our policy outputs to be broadly consistent with people, people's ideologies, even if they're often quite inconsistent issue by issue. And that's unavoidable to some extent given people's ignorance on many technical issues. The other point I thought you were going to bring up here is that linked to the fragmentation of our media has been a growth in polarization, especially among elected officials, but to some degree among the electorate as well. And that's a big deal for the pursuit of alignment. The more polarized the positions of elected officials in particular are, the harder it becomes to achieve alignment. If in the extreme case, if every Democrat is an extreme liberal and every Republican is an extreme conservative in office, but the median of the electorate is centrist, it becomes impossible to get real alignment. You're just choosing then between liberal misalignment or conservative misalignment, depending on which party is in power. So to some degree, I think people often over emphasize polarization as a problem in American politics. But when it becomes close to complete polarization, it does make alignment quite difficult to achieve.

The hope that we're not going to get to that place of complete polarization is this body in the middle, which you refer to a lot, the moderates in the middle, that most Americans are not the extreme left or the extreme right, Most Americans are moderate. But when we ask what does it mean to be moderate, that might make us less skeptical that this is a stable position. If what it means to be moderate is to have a well informed view about all the options and take a position that's kind of compromising a bunch of different perspectives, then yes, I would have lots of confidence that moderation in that sense could preserve itself. But what it means to be moderate is just not to focus on the issues, not to have any clear sense of what's going on, really just not willing to take any side when polled about it. Then as partisan media becomes ever more effective in rallying the latent to their side, it makes it harder to Believe we're going to have a long term future where there's a moderating influence in the middle that can avoid the partisan, polarized, extreme misalignment that you're talking about. So why do you have faith in the moderates in the middle? What is there about them that makes you believe they can withstand the effect of the, this ideological political party system?

Yeah, I should say first off, if the electorate were to truly polarize such that there were few or no moderates left, I'd be very unhappy with that development. But it wouldn't necessarily undermine alignment per se. It would just mean that highly polarized outputs are the right outputs that correspond to the polarized public that we've become. It would be an unhappy world, but it wouldn't be necessarily a misaligned world. But. So why am I more optimistic about the public? One point is that the trend of polarization among elites has now been going on for quite a while, for decade after decade, really. 1980 or so is the cut point. And so we've had four decades plus of intense polarization among elites that has not produced anything like that polarization among the electorate. So I think if it were the case that moderates would quickly polarize after being exposed to some partisan arguments, we ought to have seen that happen by now, and we haven't. If you do opinion surveys today, you'll still get an overall normal shaped ideological distribution for the public with the greatest mass of people, people somewhere in the central region. So there's a political scientist who's argued that let's not really believe that these are true moderates. They're just uninformed or cross pressured people. Maybe they look moderate because they give one extreme left position paired with an extreme right position. It turns out that's not really what's going on though. Some subsequent studies have shown that even when you try to control for this cross pressure, even when you control for how informed people are, there really do appear to be many true centrists. They are somewhat less engaged in politics overall than extremists. They are somewhat less educated, somewhat less informed, but nonetheless they're really there as a huge pool of true moderates who end up being the decisive force in many elections as well. So I don't, I mean, if our public hasn't dramatically polarized in almost half a century of elite polarization, I don't think that we're on the verge right now of having the pool of moderates suddenly disappear.

Okay, that's really helpful. All right, let's shift to particular issues. We've already outlined some of the elements here. So it's really interesting the way the theory, the theory of alignment produces interestingly different results depending on the theory. So you've already said that there's not a lot of good evidence that techniques to suppress the vote, to put them all into one bucket, are misaligning. They might be frustrating and they might be particularly frustrating to particular classes of people, like minorities who are being excluded, but they don't exacerbate the problem of alignment. You also talk about the way parties might select their nominees, except for ranked choice voting with multi member districts as a way to address that. That's not going to have a significant misaligning consequence depending on which particular solution you adopt, whether it's open primaries or partisan primaries. That's interesting. Gerrymandering's the easiest case for the misalignment category. And campaign finance too is interestingly subtle and we're going to talk about that. But I want to just ask one question you don't really address, which is what is the alignment consequence of the particular mode by which electoral votes are cast in the Electoral College, which, as you know, because we have winner take all in all, effectively all but two states, that means that only next election, nine states matter to the presidential election and, and therefore the president is focused on those nine states, they might or might not have some connection overall. But I just wonder whether you've thought about how the Electoral College itself adds to alignment or misalignment here.

Yeah, I would say that the Electoral College is a mechanism that is occasionally prone to producing massive, extremely troubling misalignment. So every time we get the wrong winner presidential outcome, we have the most extreme possible form of misalignment for the most important elected office in the country. In a typical election where the winner of the popular vote also wins the presidency, then I think the Electoral College is an awful system for other reasons. Focuses everyone's attention on a handful of states. But I wouldn't say that it's misaligning per se. So in the 2020 election we had an aligned result where the winner of the popular vote properly was the winner of the presidency as well. But I think still we shouldn't tolerate having a mechanism that every few years produces an extreme misaligned outcome. And so the possibility of wrong winner outcomes under the Electoral College I think is a terrific reason to try to, to scrap the Electoral College or circumvent the Electoral College as soon as we possibly can.

Okay, but that's Talking about representational alignment. If we talk about policy alignment and you imagine, as some people have, for example, the book Particularistic President, that presidential candidates tailor their policies to be of interest in the swing states. And the policies that are of interest in the swing states, like supporting for ethanol in Iowa or supporting coal policies for coal mining states, don't necessarily align with the policies of most of the rest of the country. For example, solar energy, which is of importance in California and Texas both, is just never really on the table because it's not an issue that matters in any of the swing states. You could have policy misunderstood misalignment because of the Electoral College here, even if you don't have representational. Isn't that right?

Yeah, I think that is right. That'd be a much subtler form of misalignment, that because of the incentive to appeal to a small handful of states, there's also an incentive to craft federal policy that is particularly attentive to the desires of those states and that that could be policy that's non congruent with the preferences of the population of the country as a whole. Yeah, I've never seen any, I guess, quantitative studies of this, but it rings true. I'm not sure also how large scale these distortive effects are, like ethanol in Iowa. We're not talking about the shape of the welfare system in America or something, but I do agree there are likely some subtle misaligning effects that take place even when we don't see misfires from the Electoral College.

Yeah, I guess trade policy would be one place you could see it quite dramatically. So we've had a lot of protection for steel for no good reason, but the only political reason would be states like Pennsylvania or Ohio, where that might be particularly significant.

The counterfactual is hard to establish since we've only had the Electoral College. We can't really say with a lot of certainty what things would look like without the Electoral College.

Right. Okay, let's turn to campaign finance. And again here I think this is one of the places where this theory shows how subtle and interesting it can be because there are very important differences among the dimensions of the problem of campaign finance. Let me see if I can summarize it in a way that at least gets your agreement that this is in fact what you're arguing. One framing point about this is that you've set up alignment theory as something that can be used as either a sword or a shield. A sword. So an activist attacks a particular policy and says that's misaligning. So therefore the state needs to justify it particularly effectively. Campaign finance is a context where it's used mainly as a shield. The state passes a law and says this law should be upheld because it contributes to or it avoids misalignment. So the most obvious context in which that justification works is with individual donations. So when the state says we want to limit donations, one really good justification for that is unlimited contributions to the campaign tend to have a misaligning effect. And so therefore we should allow the state to avoid that misaligning effect by limiting contributions. Really interestingly, that's not true with respect to contributions by PACs, where PACs tend to be more moderate. And so to the extent they are having an effect, it is an aligning effect, not a misaligning effect. I stumbled a couple times reading what you wrote because you don't really frame PACs distinctly from super PACs. So many people hear PACs in their thinking super PACs. But you make a very clear distinction between the PACs contributing to candidates and outside spenders who themselves would be functioning very much like individual contributors. So they too would have a misaligning effect. And the alignment should satisfy should be something the state can invoke as a justification for limiting contributions to independent political action committees, for example. Is that a fair summary of where your three positions are here?

Yeah, I'd add that with respect to Super PACs versus PACs. Super PACs I basically see as an extension of rich individuals who are the ones funding super PACs. So just as rich individual campaign funding is misaligning, so are the activities of super PACs. And the related point is that unlike the Supreme Court, I don't draw much of a distinction between campaign giving and campaign spending. If the source of the funding is a misaligning source, it doesn't much matter whether they're making contributions to candidates or spending the money independently.

Okay, and so the solution in the context of money, you say you supported lavish public funding, but there are different kinds of public funding that are differently impactful for alignment. So one very popular form of public funding, and one which the for the People act supported was multiplying small dollar contributions. So a small dollar contribution can be multiplied. The original version of that it was 9 to 1, eventually 6 to 1. But the point is that the small contribution can have more significant effect. You're concerned that those small dollar contributions actually increase misalignment to the extent that the contributors there tend to be people at the partisan extremes on both sides.

Is that Right, Yeah. There's often this romantic notion around small donors that somehow they're meaningfully different, more small b Democratic than big donors. They're poorer than big donors. But it turns out that ideologically small donors look an awful lot like big donors. And so having public financing hinge on the actions of individual small donors donors traps us or leads to the extreme views of those small donors then having an impact on politicians.

Okay, so then a third form of public funding that you describe and which has been important to the work, important to the argument I've tried to advance is vouchers, which is different because you give vouchers to everybody. And so to the extent candidates are focused on collecting vouchers, they're going to go where most people are. And it turns out from our polling we know most people are not at the extremes, most people are in the middle. So vouchers at least have the potential as a form of public funding to increase alignment, is that right?

Yeah, they have the potential. And a lot then hinges on what proportion of people actually use their vouchers. So if you get take up rates of only 1% or 5%, if the people using the vouchers are the same people who otherwise would have been small or big donors, then vouchers aren't all that aligning. But if you can convince large shares of the public to use their vouchers, then I think vouchers have enormous aligning potential. Even under the status quo where take up rates are not great, they're still aligning relative to, to a benchmark of a system of private financing. So the best studies I've seen on Seattle, where they have a voucher program is that voucher users do look different from ordinary campaign donors. They're more diverse, they're a larger share of the population. They're not as diverse, they're not as large a share of the population as you might like, but they're still, still aligning relative to the baseline of the status quo.

So to the extent we move to a voucher solution and increase the techniques for making sure everybody is participating, then that would be an aligning intervention here. Now you believe, and I agree with you, but I just want to know if we can articulate this in a really concise way that the Supreme Court has not yet really addressed the question whether it would be a sufficient state interests to advance alignment as a reason to restrict campaign spending or campaign money, whether it's contributions or spending. What is the argument for conceiving of this as distinct from the standard justification? The Court seems to have insisted as the only justification, which is quid pro quo corruption.

Yeah. The point here is that jurisdictions are free in any case, constitutional case, to advance whatever interests they want for their challenge policies. And unless some justification is precluded by prior precedent, courts have to at least consider that justification that's offered. And so the argument here is that the courts have rejected a number of other values that might sound like something related to alignment, but they're not alignment itself. And so therefore there's nothing preventing a jurisdiction from saying we passed this public financing law or the super PAC restriction because we're trying to promote alignment. That said, of course, I think that this court, if presented with that kind of an argument, would make quick work of that new justification. The court would say, fine, even if you're right, that alignment is not identical to any kind of corruption or distortion or equality. We don't care. We've never said that we're limited to only precluding those particular interests. This court could easily enough just add one more prohibited interest to its existing list. So this is more of an argument for the future that at some point, if there's a more receptive court, it could be helpful to litigants that alignment has not been squarely rejected by existing precedent as a justification for campaign finance reform.

When we think about the super PACs where $10 million contributions, there was one this recently, more than a billion dollar contribution. One way to understand the reason there's misalignment is the dependence on these huge and extreme funders. And so in this sense, the concern about improper dependence inside of our political system, which is also not a concern about corruption directly, quid pro quo corruption at least, and not a concern about equality, but more a concern that the systematic effect of that dependence is to steer the system away from what would be an aligned result. Those seem to to be compatible concerns in the context of campaign finance.

Yeah, absolutely. So I think there's no tension between my view on alignment and what you've written about dependents. I would say that the excessive dependence of politicians on the super PAC spending exerts a powerful misaligning influence on the politicians that helps to cause them to then take positions that are favored by the super pacs, even if they're opposed by the public as a whole. But I think what we're saying is completely compatible. I would just say that dependence, excessive dependence could be a means that produces the end of misalignment. Right.

Okay. One final question, again, something that you didn't address, but I Wonder seems to be a pretty clear pro aligning influence or reform. So there's been a recent push in the United States to talk about what's called universal voting, or techniques to follow the Australian model to require people to participate. It would seem that that too would have an aligning effect on politicians as well, because they would be less interested in appealing to the extremes, knowing that it's not just the extremes who are showing up. So this should be a policy you would support as well, is that right?

It all depends on how divergent, if at all, the current electorate is from the entire public that would vote if compulsory or universal voting were adopted. There have certainly been periods and jurisdictions in US history where the actual electorate was quite unrepresentative of all people over 18. And so their compulsory voting would have been clearly aligning at this moment in American politics. I'm not quite sure how divergent the actual electorate is from all eligible voters in America, especially as better educated, wealthier people have become Democrats in recent years. Some of the traditional skews in the actual electorate might not be present to the same extent or at all anymore. So I'm not sure at this very moment how aligning compulsory voting would be. But in general, the good thing with compulsory voting is that it eliminates any possible divergence between the actual electorate and the eligible electorate. And so my only defense of the status quo is contingent on, at this very moment, actual voters, kind of through a happy coincidence, looking like the whole pool of all eligible voters. There's no guarantee that happy coincidence will endure going forward.

And it doesn't exist in the context of primaries. Right. That's the one place where the people who show up are certainly far from the average, within their own party even.

Right?

Yeah, yeah, yeah. Although I don't know if proponents of universal voting would argue that even primaries should be made compulsory.

I mean, some are, but I would think they would do that for exactly the reason you're saying. It's not going to matter much at the general election, but it would matter a lot to not have. I mean, you talk about the fact that we have candidates produced by the primaries who actually are not candidates who are representative of what the general election would look like.

Yeah. And certainly given how low turnout rates are in primaries, it's. It's much more easy to imagine divergence between the primary electorate and all of the voters of that party, let alone the entire eligible electorate.

Okay. I am so grateful that you've taken your time to talk about this. I don't actually think I know the title of the book because I don't think the one you sent me actually has a title. So what is the book going to be called and when will it be out?

Yes, I think the working title now is A Theory of the Law of Democracy. I've gone through some earlier iterations, but I think I like this version of the title. The book's under contract with Oxford. My deadline for finishing the book is the end of this year, and so my guess is it'll be out in print hopefully sometime in 2024, although maybe later. I haven't written a book before, so I'm not familiar. Familiar with how long it takes between finishing a manuscript and finally getting the book out.

Yeah, that is insanely slow. So I finished a book at the end of last year and it won't be out to the beginning of next year. So it's just for some reason, publishers still live in the 17th century. Actually, I think they were faster in the 17th century. But anyway, I'm really grateful for your time. Really, really excited about this book and I am hopeful that it inspires not just litigators who are going to be hitting their head against a unreceptive court walls, but much more importantly, political actors who could begin to sell the idea of alignment in a way that gave us a general theory about how democracy should be reformed. It's really powerful. Thank you very much.

Yeah, thank you so much. Thank you for your engagement with this. This was an incredible conversation.

This has been episode six of season five of the Podcast of Another Way.

These podcasts are produced by Equal Citizens. They're literally made by Josh Elstrow of Elstro Productions.

You can find out more about equal citizens at equalcitizens.us. you can give us your feedback at that site. I love the feedback, especially the ideas they hate.

Not so much, but whatever.

I got a thick layer of skin. And of course, we're also grateful for all of those people who love to

click red donate buttons. Just click it.

Just click it.

And then when it says $100 or even just $10 a month, say yes, $10 a month.

That's less than you spend for cable.

And with that $10, we can make sure we can continue the work at

Equal Citizens to spread the idea of

a representative democracy where all citizens have equal political power.

Thanks very much for listening.

Stay tuned for the next episode in this series.

In this part about overturned tables,