Front Burner - Is American democracy broken?

Episode Date: November 6, 2020

It’s been an eventful week following the U.S presidential election, as we continue to await the final results. From Trump’s demands to stop the vote count, to the lawsuits contesting ballots in several states, one key theme that’s emerged is that America’s democratic system is being tested. This is an issue that Lawrence Lessig has been studying for a long time. He’s the author of “America, Compromised” and “They Don't Represent Us: Reclaiming Our Democracy”, and the founder of Equal Citizens, a non-profit dedicated to democratic reform. He joined host Jayme Poisson to reflect on what the 2020 election says about the state of democracy in the U.S.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hello, I'm Jamie Poisson. Amy Poisson. We're here because Donald Trump made a false claim of victory. Do not let this election be stolen. I won't. I know you won't. So it has been a whirlwind of a week following the results coming out of the U.S. election. As of Thursday night, Joe Biden was still leading in key states, Arizona and Nevada, and was closing in on Donald Trump's lead in Pennsylvania and Georgia

as mail-in ballots and votes from city centers, which skew heavily Democrat, trickled in. What's your message to people around the state and around the country who claim the amount of time it's taking Georgia is some sort of effort to steal an election or cheat? The effort here is to make sure that everybody's vote, legal vote, is counted properly and that the actual results are reflective of the voters intent. Our goal here in Clark County is not to count fast. We want to make sure that we're being accurate. The Trump campaign continued to press legal challenges and continued to assert

the election was being stolen without evidence. And a judge in Georgia rejected a Trump campaign lawsuit on absentee ballots. If you count the legal votes, I easily win. If you count the illegal votes, they can try to steal the election from us. All of this has put a spotlight on American democracy and what many see as its failings. Today, Lawrence Lessig is the author of America Compromised and They Don't Represent Us, Reclaiming Our Democracy. Lawrence is also the founder of Equal Citizens, an American non-profit, non-partisan group that's dedicated to democratic reform. Lessig has long argued

that American democracy does not represent the people equally. This is FrontBurner. Hi, Lawrence. Thank you so much for making the time to speak with me today. Thanks for having me. So the race is still very tight. There is no call for who the president is right now. At the same time, Donald Trump is, of course, falsely claiming victory and accusing states of fraud. I have to call them phony polls, fake polls. We're designed to keep our voters at home, create the illusion of momentum. There have been some protests, people in Detroit chanting, stop the count. There are counter protests,

people chanting, count the vote. And what are you making of all of these developments right now? Well, I think one can't help but be astonished at the irresponsible behavior of the president. I don't think there's any example ever in the history of the United States when a president has tried to so directly interfere in the process of the determination of the result. And so the suggestion that it has to be done on election night is just crazy talk. But obviously there are a lot of people out there

who are so emotionally invested in this that they could do crazy things in response to that suggestion. And that's just irresponsible. The people who are so emotionally invested in this, I think about the protesters in Detroit chanting, stop, stop the count, right? Stop the count! stop the count, right? It strikes me that what's happening in that protest, it could be a manifestation at least of some of the problems you see with America's democracy.

And what do you think is wrapped up in that moment and moments like it? Well, I actually think that the current pathology of our democracy is driven in large part by an infrastructure of media that literally profits the more it can turn us into crazy tribal citizens. You know, platforms like Facebook make more money the more it can turn us into crazy tribal citizens. You know, platforms like Facebook make more money the more they can get us to be engaged and angry and share their content. And they do that the more they turn us into left-wing crazies or right-wing crazies. And so when you've got a media infrastructure whose business model depends on turning us into crazy people, it's not surprising that we're turned into crazy people. Mail-in votes have gone missing for Trump.

ExposeSunrise.com shared Zoom calls of violent leftists mapping out detailed plans to sow chaos. Where do you see the most egregious media bias right now? I don't want to single out your network, but CNN's been pretty bad on this. You know, so there's no logic to it. There instead is just this deep emotional commitment to expressing and fighting in a way that I think is just literally incomprehensible, even just 30 years ago. And it's terrifying because I don't know how we go forward if this is the way democracy is going to be.

I'm not sure then what your answer to this next question might be if you're worried about how you go forward. But do you have confidence that this is heading towards a calm and decisive conclusion soon? You know, right this moment, Thursday afternoon, it could either be the calm before the storm or the beginning of the end, or the beginning of the end in a good sense. The calm before the storm because at least earlier in last month, the Trump campaign was talking about taking steps that are literally unprecedented, taking steps to get state legislatures to pick multiple slates of electors. So, you know, like in Arizona, the Republican legislature says, well, we think that the vote of the people wasn't properly reflective of their views. So we're just going to pick another slate of electors for Donald Trump. Or the same could happen in Georgia if Georgia goes for Joe Biden. And then Congress has to struggle with how does it decide which of

the slates to count. And that process could be really destructive. On the other hand, if in the next 12 hours, Georgia comes back for Biden and Pennsylvania comes back for Biden and Arizona and Nevada are for Biden, then it's kind of hard to argue with these results. Because not only would Joe Biden have won the popular vote by a majority, he will also have had a majority of the electoral college votes. And, you know, I get the way people think that winning the popular vote is not enough, but winning both the popular vote and the electoral college should be enough, even for this president. In your calm before the storm scenario, I wonder if you could just explain to me and to our listeners here in Canada a little bit more

about this idea that electors can be chosen. So, you know, I know, and I think this is going to sound so rudimentary, but how the electoral college system works in the United States is that each state has a certain number of electoral votes. So Texas has 38. Alaska has three. It's this winner takes all system. If a majority of people in a state vote for a Democratic candidate, then 38 or those three electors put their votes towards electing the Democratic candidate. But you're talking about something different here that could potentially happen. Right. It happened in a really significant way in 1876, which is an election very much like this election. It's an election which the nation was deeply, deeply divided as the Republicans then were fighting to preserve the equality

amendments that had been passed after the Civil War. And the Democrats who were, you know, Southern Democrats were basically fighting to restore slavery. And in that election, in three states in particular, there was a fierce contest about fraud and voter suppression. And so each of those three states produced a slate of electors for the Democrats and a slate of electors for the Republicans. And then Congress had to decide which slate it was going to count. We haven't seen that happen in any way that ever threatened the elections since. We don't have a clear sense of how it would be resolved. I mean, there's a law that says how it gets resolved, but the law creates

its own problem. What the law says is if you've got two slates of electors or more than one slate and Congress can't agree on which slate gets counted, and this Congress wouldn't agree because one house would be Republican and one house would be Democrat. So if they can't agree on which house gets counted, which slate gets counted, it's the slate signed by the governor. Okay, so in many of the states that Joe Biden has won, it's a Democratic governor. So this game could never benefit Donald Trump. But Arizona has got a Republican legislature and a Republican governor. Georgia has a Republican legislature and a Republican governor. Georgia has a Republican legislature and a Republican

governor. So you can imagine, you could easily see the way if they begin this game, Arizona could step back and have another slate of electors that would go to Congress. And if Congress can't agree, then the Republican slate gets counted. And, you know, I don't know what happens if America wakes up and this election has in that kind of grotesque way been stolen. Because, you know, I don't know what happens if America wakes up and this election has in that kind of grotesque way been stolen. Because, you know, I think people are going to recognize this is a majority winner. He won the popular vote by a majority. He will he should win the electoral college by a majority. And the idea that that would be denied to the public will, I think, trigger, you know, very, very engaged protest.

Unless the people stand up and make it clear that every vote has to count, the election will be stolen. And we can't allow this election to be stolen. It's too important. This country is living a nightmare. I would prefer to have certainty in the vote than to have this sort of curious position we're in right now. It really just represents how divided we are as a state and frankly, as a nation. I know that this is something you talk a lot about, the Electoral College itself and how it doesn't represent people equally across the country. And so is this just one reason why you think the Electoral

College is broken? You know, the problem of the Electoral College in most people's mind is, for example, what happened in 2016 or happened in 2000. Al Gore winning the popular vote by a slim margin. George Bush, though, taking the election by winning the electoral college. Clinton won the popular vote for about 200,000 votes, but still lost that election. She's only the fifth presidential candidate in history

to see that happen on election night. But I think that the real problem with the electoral college doesn't happen once every 20 years. It happens in every single election. And that's because of the way states allocate their electoral votes. States give all of their electoral votes to the winner of the popular vote. All but two states do that. That's called the winner-take-all system.

But what the winner-take-all system means is that in any election, the vast majority of states are completely irrelevant to the candidates because they know which way they're going to go. No matter what happens, California is going to vote Democratic. Texas is going to vote Republican. Kentucky is going to vote Republican. New York is going to vote Democratic. So you don't see in the vast majority of states any real campaign. Instead, the campaign is always in those states that are going to be extremely close. And so those swing states get all of the attention. They get a high proportion. They get a very large benefit in federal spending. They get regulations that benefit them.

They basically are the preferred electors in the selection of the president. So we've kind of outsourced the selection of our president to this country we could call swing state America. But the problem is swing state America doesn't represent America. It's older, it's whiter, its industries are not the kind of cutting edge industries of Texas or California. And so it's just a crazy system that we would say, these 10 states get to pick our president when the president is supposed to represent all of us. Is there a way to fix all of this? Well, there's been a push to change the Electoral College since about two days after the Electoral College was created, because it's been a disaster from the very beginning. It was a very long time ago. Yeah. Yeah. And in the 1960s and early 70s, we came very close to passing an amendment out of Congress that would have abolished the college and just had national popular vote. The only hurdle remaining is the Senate.

The amendment gets filibustered to death. Three Southern segregationist senators lead the charge to essentially block any debate on the Electoral College, and they end up killing it a year later in September of 1970. Since 2000, it's become very partisan because Republicans think the only way they win is if we have the Electoral College. So I don't think that you're going to see an amendment to abolish the college. Instead, what I think you're're going to see an amendment to abolish the college. Instead, what I think you're more likely to see is something called the National Popular Vote Compact, where basically states promise to pledge their electors to the party whose candidate won the popular vote, whether or not that candidate won in that state. So Colorado just had a referendum

on this in this last election on Tuesday, which won with, I think, 53% of the votes. And so what that means is, if there's an election and Colorado votes for the Democratic candidate, but the Republican candidate gets the most votes nationally, then it would be the Republican slate of electors that Colorado would select, and they would vote for the Republican, even though Colorado didn't vote for the Republican. would select and they would vote for the Republican, even though Colorado didn't vote for the Republican. And so this would be a kind of clever hack to get around the structure of the Electoral College and basically turn us into a national popular vote system. So essentially, if enough states were part of this compact, then and it existed right

now, would Joe Biden be the president? Absolutely. Yeah. And so I know Colorado has voted to sign on to it. But what about other states? Because I wonder if I'm Pennsylvania, or Ohio, or Wisconsin, maybe I like the power that I have. Yeah, no, they do. And they're not members of a compact yet. The compact says that it doesn't come into force until states representing 270 electoral votes or the majority of electoral votes. I think that ultimately, we have to get to a constitutional amendment to fix this. And the kind of amendment I think that could pass is one that would say not that we get rid of the

electoral college completely, but that we say that electoral votes have to be allocated proportionally between the top two candidates in any state at a fractional level. So if you get 35% of the votes, you get exactly 35% of the electoral votes. And what that would do is it would make every state relevant. You wouldn't care if you got a vote out of California or New York or Kentucky. They would all matter just, they would all matter to your ultimate chance of becoming president. Small states would still have more weight than big states. But the reality is small states are evenly divided between Republican and Democratic states. So it wouldn't have a partisan advantage. It would just be advantage for the smaller states. So I think that's a compromise

we might be able to live with. And I think, you know, most states will come around to recognizing that system would be much better for them than the current system, even if it's not as radical a change as national popular vote would be. In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization. Empowering Canada's entrepreneurs through angel investment and industry connections. Hi, it's Ramit Sethi here.

You may have seen my money show on Netflix. I've been talking about money for 20 years. I've talked to millions of people and I have some startling numbers to share with you. Did you know that of the people I speak to, 50% of them do not know their own household income? That's not a typo. 50%. That's because money is confusing. In my new book and podcast,

Money for Couples, I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples. I want to move on to the Senate, which, along with the House of Representatives, is responsible for all the lawmaking in the United States. And let's say things do proceed relatively smoothly over the

next several days. And, you know, we don't know who's going to be the president, but like, let's say it's Joe Biden. Republicans right now, they do have a better chance than the Democrats of controlling the Senate, which would make it very difficult for a Biden administration to get things done. So even though Biden is elected by the majority of the people, and they want expanded health care, that may not happen. And can you talk to me a little bit about why you think the Senate does not represent people equally? Well, that's the most obvious inequality in our political system, because, you know, a state like Wyoming, which has a population of, I think, 600,000, gets two senators, and a state like California, or as I know the population of Texas, a state like

Texas, which has 29 million people, also gets two senators. And not only is that the original allocation, the Constitution expressly says, you can't amend that. That bit can't be changed. So the Senate has baked into our Constitution equal representation per state, regardless of the radical inequality in the populations of the state. But I actually think the reality is the more important reforms that we could bring about, you know, gerrymandering reform, money and politics reform, restoration of the Voting Rights Act, assuring equal freedom to vote, those would get us 85% to where we need to get to begin to have a functioning representative democracy. And that's where we ought to be focusing, as opposed to,

you know, what could be impossible, the idea of like changing the structure of the Senate. Right, right. And so the Voting Rights Act, voter suppression is something we've talked about on this show quite a bit recently, for our listeners and gerrymandering. Obviously, that's changing the borders to essentially influence the outcome of an election. But could we spend the last bit of time that we have together today talking about money in politics? Please. Because I know this is something you spend a lot of time writing about, how money erodes the democratic system, and not just in the presidential race, but in congressional and Senate races as well,

how lobbying groups and rich donors essentially force politicians to appease their interests over the interests of others. Is there an example that you can call on from this recent election that embodies this? I think the problem with money is the dependency that it creates between representatives and their funders. You know, members of Congress and candidates for Congress spend anywhere between 30 and 70 percent of their time raising money. But they're raising money from a tiny, tiny fraction of the 1 percent. So, you know, these are humans. Everybody knows that if you spent all of your time or half of your time sucking up to a tiny, tiny slice of America, you're going to be incredibly responsive to their needs. And so the critical reform is to make sure that there isn't

that dependency, to give members and candidates a way to fund their campaigns that doesn't depend upon sucking up to these incredibly powerful people in our society. And those changes could happen without constitutional amendments. You could have public funding of congressional elections tomorrow. Without any amendments, the Supreme Court would be completely okay with it. And I think that's what we need to do. And do you think that if, you know if some or any of these changes are made, that the environment would be less politicized, less polarized than it is now? Well, what we know about raising money is that the easiest way to raise money is to vilify your opponent.

And so there's no surprise to the fact that there's incredible rise in the kind of hatred of members of Congress to the other. And, you know, the difficulty of kind of turning around and working with them, like if you spend half your time vilifying the other side, how can you in good conscience, like walk into the floor of the House and try to work with them to get a bill passed? So I do think that it's related to that. You know, I think the other incredibly important cause is an infrastructure of media, especially social media, that literally profits by giving us what we want. And what we want is to be reassured in our partisan views. So the more it can convince us that our polarized, partisan worldview, our tribe is right, the happier we are. It's incredibly addictive. Like, you know,

who can stop, you know, the doom scrolling on their Twitter feed? It's bad for democracy. You can't run a democracy if we're all getting our information from Twitter and Facebook. It just can't happen. And yet that's what we've essentially created. essentially created. You spend so much time talking about all these reforms that you think are necessary to the Electoral College and to how money is spent in politics, to the Senate, to voter suppression. But, you know, how does one fix that problem? I don't know. But I do think that there's a lot for people to do. If you're feeding on an endless diet of Twitter and Facebook to understand politics, you're poisoning your democracy. You're just poisoning your democracy. And you've got to turn off.

You've got to turn that off. biggest things that Americans woke up to on yesterday morning, when you realize that half of this country voted for a man who is literally the worst president we have ever seen. And Van Jones on CNN had this really poignant moment where he said, there's a moral victory and there's a political victory. The political victory still may come. But I think for people who saw babies being snatched away from their mothers at the border, for people who are sending their kids into schools where the N-word is now being used against them, for people who have seen this wave of intolerance, they wanted a moral victory tonight. We wanted to see a repudiation of this direction for the country.

And the fact that it's this close, I think it hurts. It just hurts. And I think one thing that follows from that is that we have allowed our own politics to become too isolated and too self-righteous. That if we accepted the responsibility, each of us,

of like reaching out to the other side, not to pretend that there are no differences, but at least to engage in a conversation so we could begin to build a common understanding of these issues. I think we desperately need to figure out how to restore a vibrant and healthy democracy because we don't have one here. And obviously, that's a problem for the world. I guess that's the question that I'd like to ask you, our final question of the day. You know, you spend so much of your time trying to think of ways to make democracy better, right? And Tori, correct me if I'm wrong, you sound quite pessimistic about the future of democracy in the US right now. You don't sound very optimistic. You don't sound very optimistic. I guess that's right. I also think it's kind of irrelevant.

I tell this story, I've told it a couple times. I'll tell it again here. I remember once I gave a speech at Dartmouth, and a woman stood up after the speech, and she said, you've convinced me, Professor, it's hopeless, and there's nothing we can do. And I thought, oh, that's a great failure, because I don't want to be out here convincing people it's hopeless. And when she said that, I had thought in my head, like, what if a doctor came to me and said, my then son was then six years old, said, your son has terminal brain cancer and there's nothing you can do. And I thought, would I do nothing?

And, you know, obviously, anyway, to be recognized is that you wouldn't accept it, you would do whatever you could, because that's what love means. And it was a small step to recognize that's what I feel when I feel love for country here, leading me to say, I'm going to do whatever it takes, whatever it takes, not because I think I'm likely to win, it takes, whatever it takes, not because I think I'm likely to win, but because I can't stop fighting until we win or until I pass away, because this is the essential fight. Okay. Lawrence Lessig, thank you so much for this conversation. It's been such a pleasure listening to you.

Thank you for having me. All right, that is all for this week. FrontBurner is brought to you by CBC News and CBC Podcasts. The show is produced this week by Imogen Burchard, Elaine Chao, Ali Janes, and Shannon Higgins, with help from our intern, Ashley Fraser. This week, our sound design was by Derek Vanderwyk and Mandy Sham. Our music is by Joseph Chabison of Boombox Sound. The executive producer of FrontBurner is Nick McKay-Blocos, and I'm Jamie Poisson. Thanks so much for listening, and we will talk to you next week.

For more CBC Podcasts, go to cbc.ca slash podcasts.