The Dispatch Podcast - How Do You Solve A Problem Like Primaries?

Episode Date: June 1, 2022

Edward B. Foley, professor and director of the election law program at Ohio State, and Nick Troiano, executive director of Unite America, join Sarah for a conversation about reforming primaries. What does primary reform look like? Their conversation covers political science, history, and math. That’s right math. Can math save democracy?   Show Notes: -Requiring Majority Winners for Congressional Elections -Foley in the Washington Post: “How our system of primary elections could destroy democracy” -The Sweep: “A Focus on the Problem with Primaries” -Unite America: “America Has a Primary Problem” Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the dispatch podcast. I'm your host, Sarah Isgar. And today, we're going to talk big picture this primary season. Sure, individual primaries have been going on for the last month. And we talk about candidate A versus candidate B or C and who's winning and who's losing. But do we spend enough time talking about why our primary system works the way it does and whether we're actually incentivizing the right people to run, the right people to win? And once they're in office to do the right thing. So today, we're going to talk to two experts about that. One is Professor Edward Foley of Ohio State University's Moritz College of Law. He is also the author of a new law review article, Lewis and Clark Law Review, that we'll put in the show notes, why Congress can and should adopt a majority winner requirement. And we're also going to talk to Nick Troiano. Nick is the executive director of Unite America, a national organization that works to bridge the growing partisan divide by enacting political reforms and electing candidates who put people over party. Nick has a new website out there called primary problem.us, where you can see some of the math in action.

It's going to be a nerdy, fun, big conversation about American democracy and how we preserve self-government. Let's dive right in. It's weird to call a law professor by his first name. I'm still very much a law student at heart. You recently published a Washington Post op-ed entitled How Our System of Primary Elections Could Destroy Democracy. We talk a little bit about just what you see the problem being right now? Well, this year, we're seeing a large number of primaries that have

30 percent winners. Less than a third of the vote is enough to make somebody the nominee of the party. It just doesn't make sense. I mean, you know, is that really the candidate that the whole party wants if two-thirds of voters in the primary are choosing somebody else? So it's just not a rational system. So the problem is how we pick our winners in primaries to then go on to the general election. But, and look, it's not an apples to apples comparison, but we elect presidents who lose the popular vote. So we're not, you know, a majoritarian country in all respects. Well, that's not a good system either. So I wouldn't defend a 30% winner in primaries by saying, well, we elect 40% winners for the presidency. You know, we do have this, I would say, problem in America that we are

confused as a country about what our elections are designed to do and how we want to achieve them. Again, we want a democracy, and we sort of think that democracy means majority rule. Yes, we have constitutional rights and the Bill of Rights to constrain majorities, to avoid tyranny, and so forth. But we tend to think that votes, you know, when you put something to a vote, more should beat fewer. And that usually means 51% should be 49%. And the standard model in our mind is two-party competition or a yes-no choice. And to use a technical term, the plurality winner, meaning more votes than anybody else, is the same as the majority winner when the choice is just confined to two options. But when there are actually multiple options, as a

in some of these primaries, or sometimes in a presidential election when you have Ralph Nader or Jill Stein or somebody else, then the electorate can fracture across all of the options. And we kind of think that the winner has a mandate by having the most votes, but not necessarily because a majority might have really wanted the plurality winner to lose because, but the majority divided itself between two different alternatives. And I just want to make sure that dispatch listeners get what they pay for here. And I want to get really academic nerdy right off the bat in this pod and have you explain Duverger's law.

I've actually only read this term. I've never said it out loud. Am I saying that right? I think so. Yeah, I think it's called Duvergerger. I think it's French. So Duverger's law. But, you know, let's whatever.

Okay. Explain what this is. it operates in the general election, and then why it doesn't operate in the primary election? So first of all, you know, as you said, I am a law professor, but Duverger's law is not a real law in the legal sense. It's not even like Newton's law of gravity and that it always works. It's just a kind of political science observation of what usually occurs. And it's based on the math that we've started to explore, that if you have in a general election a rule that says the plurality wins, meaning whichever candidate with the most votes wins, that creates a strategic

incentive among voters, candidates, political factions, interest groups to actually coalesce into two camps, two teams. And so the two-party system that we have in America has thought to be a strategic outgrowth of the predominant use of plurality winner elections in the United States. And so Divergerzay's law is essentially wherever you see plurality winners law, you know, when the rule is itself, the plurality wins. The political science phenomenon that observes is two-party competition. And that holds in the United States for the most part in general elections, although, Sarah, as you mentioned, the presidency is such a powerful prize that you have third, fourth, fifth, sixth, seventh, eighth parties wanting to compete to get a fraction of the votes like Nader did in 2000, and they could be spoilers. We could come back to that point. So it's not a perfect law. But what's obvious in the primaries, and especially this year, is that this so-called law has no purchase in a primary election. You know, primary after primary after primary is multi-candidative.

competition. It is not causing the interest groups or factions within each party to coalesce around two alternatives. We're not just seeing us versus them. We're seeing, you know, Pennsylvania, Ohio, pretty much everywhere this year. Georgia's a little bit different. We can talk about that because of the runoff rule there. But in most of these primaries, nothing like two candidate competition is prevailing. And Nick, this is the perfect introduction to you. Did you know about DuVurge's law when you ran for Congress as an independent in 2014? I mean, you are the one on this podcast with the most on-the-ground experience of why our system is broken. So talk a little bit about your run, how you did all that. Perfect, perfect segue into Nick. Sure. Indeed, that experience running as an

independent for Congress brought me in close contact with DuVurge's law when I would go up to a door and knock on it or talk to a voter at a county fair and they said, oh, I really like you, but I'm concerned if I vote for you, that might be taking a vote away from my second preferred candidate and wind up electing the person I really don't like. And so we call that the spoiler effect. And that's why you have close to half of Americans who identify as independent. Two-thirds would like to see an alternative to both major parties. Yet new competition doesn't exist or when it doesn't prevail because of an electoral system that is designed to squash it. And that's why election innovations like instant runoff voting that allows voters to express their true preference

and eliminates the spoiler effect is, in my view, a necessary precondition for us to see new competition emerge in our electoral system. And beyond that, even if we can't have a third party, let's at least have two that can govern. And we don't have that today because both parties are incentivized to pander to their base, not to campaign and seek support from the broadest segment of the electorate. And that's largely because of the system of partisan primaries that we have. So I am in total agreement with Ned that primaries present sort of existential threat to democracy these days. It's not just a barrier to good public policymaking. It's giving rise to anti-democratic factions in our politics. And the good news is we can solve it. We invented this system a little over 100

years ago. Surely we can modernize it for the current times. So this is actually an interesting point that you raised. This isn't just a process issue. This isn't just, you know, oh, well, it'd be better if the majority supported who gets elected. It's actually having huge downstream effects. I was asked on. ABC News, why we hadn't done more on gun rights. You know, is it the Republicans fault or is it the Democrats fault in the wake of Yuvaldi? And my answer was, it's the primary system. Systems create incentives. Incentives are how you can judge what's going to happen. It's just a very easy, you know, humans are by and large relatively rational actors. And so no matter

what your pet issue is, is it gun rights, is it climate change, is it immigration? The primary system is preventing action for a lot of reasons. And Nick, I'm hoping you can talk a little bit about why you ran as an independent and why you think there's more about those incentives and what we're not seeing. Well, I ran in 2014 because I saw up close how Congress was unable to solve one of the nation's largest long-term issues, which is our fiscal outlook. You may remember a decade ago, Erskine Bowles and Alan Simpson put forward a plan of how to reduce the nation's debt in a bipartisan way. It require a little bit of tax increase. It require a little bit of spending reduction. And you can put 100 Americans in a room and they largely end up in the

same place of how to solve the problem. Congress couldn't do it because, as you said, the incentive structure was not them trying to solve problems. It was their positioning for the next election and in large part trying to prevent a primary challenger who may come along. And so I thought the only way that a leader could be free from that incentive structures to run outside the parties. And of course, therein lies a separate challenge. And that's why I and United America have focused on systemic reform since then. But we continue to see that trend to the issues that you just mentioned or look at what happened this primary season so far. There's only been three incumbents who've lost their primaries.

One was Madison Cothor, who I think is a unique example of someone who basically has done. everything wrong to not deserve re-election. But the other two were David McKinley in West Virginia and Kurt Schrader in Oregon, a Republican and Democrat, respectively. What was their sin? Well, they went against their parties to support the bipartisan infrastructure bill. And so what message does that send to the rest of Congress, except that the only way to maybe guarantee your loss in the primary is to actually do something bipartisan, to actually reach across the aisle and solve a problem? And that's why we're not seeing action on a whole host of other issues. And when you fear a primary challenge, there's a few ways to handle that.

But obviously the most common is that you yourself just keep moving further to the flank. Because there is always more room on the flank. Someone's always available to run against you. And so you have this just constant move. And we see that in data as the two parties shift further and further to the extremes. And obviously, Elon Musk raised this just mind-numbing to. debate about which party had shifted more. Who cares, honestly. They're both moving. You know, we can have, I guess, the debate on which shifted more. There's data out there to support really any

argument you want to make on that. But again, why are they shifting? Nobody was having that debate. So, all right, let's get down to then the nitty gritty on what you're proposing and what evidence you have that it will make any difference. Again, we're not trying to change the system because it would be fun to change the system. We're trying to actually see different results. There's three different results that I can see that maybe we're trying to get to. One, elect different candidates, maybe. Two, have different people run for office, maybe. And three, change voting behavior once in office. Okay. Well, as Nick mentioned and as you mentioned, Sarah, in terms of referring to the Washington Post piece, I think protecting democracy itself from the risk of authoritarianism,

which is unfortunately a strand in our politics right now, I would add, you know, I think we're not for that concern. I think we could have a debate about what is the best way to take a set of voter preferences in an electorate and translate that into which office holders get to hold office. And I agree that whatever system you adopt is going to have incentive effects, and it's going to have governance effects. So process does affect substance. But I think we're at a moment in our nation's history where, in addition to that basic issue, we have to overlay this concern about the ongoing perpetuation of the system itself, because countries can lose their democracies. And we hope that we don't lose ours. overstate the threat, but I think the threat is significant enough. And I think the problem of

primaries, not only does it cause bad government and dysfunctional government, it is exacerbating the power of the anti-democratic authoritarian strain in American politics. So I think we have to look at this issue as sort of self-preservation of self-government as well. I do think it's important to just remember in history that the Roman Republic ended, when Caesar crossed the Rubicon. But he didn't conquer Rome. He didn't sack Rome to end the republic. He was welcomed across the Rubicon. The problem was that he was so popular, not that he was unpopular or used force. So yeah, when you authoritarianism ends republics, not with a bang, but with a whimper, as it were, in a lot of ways. Okay, so Ned, what are your proposal?

and what have you seen out there for, you know, individual localities or states that have tried some of these that gives you hope that this would actually do something versus just be a fun political science experiment? Right. So I actually think there's a menu of options that we should be looking at, all of which would be better than the current really bad system. So, okay, you'll give us the menu and then Nick's going to order off of it. And see, he might order some off menu stuff. We'll see if the chef can make those. Okay, give us the menu. So, you know, so Nick mentioned instant runoff voting. Also known as ranked choice. Yes. Although ranked choice voting is sort of what the ballot looks like. It's have, you know,

you have, again, if you have an election with more than two candidates, let's say three, four, five candidates, what a ranked choice ballot does is let the voters, like the name and says, just rank their preferences. Like I prefer chocolate ice cream to vanilla. I could prefer this candidate to that candidate. Pretty straightforward thing to do to rank. You don't have to rank, but you have the option to rank. And so instant runoff voting is one method of calculating the winner off of the ranked preferences that voters provide. The reality of the mathematics of elections, which I really wish we taught in sixth grade, because it is sort of sixth or eighth grade math. It's not, you know, it's not advanced, you know, Ph.D. level math. But by the way, footnote,

Ned and I have been working on this project for the National Constitution Center about guardrails of democracy. And I haven't gone to read his yet. And he hasn't gone to read mine. It should be just in the next few weeks, really, that we're getting to share those. But, Ned, can I just tell you you're going to be really happy with one of my sections, if that's something you care about? Be doing math curriculum is in mine. Okay. We should have math. You know, it's more important in my judgment for democracy that somewhere in K through 12, you, learn about the mathematics of taking a set of preferences that voters have and finding a solution. And to get back to this notion of ranked choice voting, and the reason why it's not just one

thing is it turns out there different mathematical methods for identifying a winner with the same set of rank preferences. Now, often these different mathematical methods will achieve the same result, you know, if all the voters have exactly the same preferences, right? We don't have to worry, right? If everybody's unanimous, you really don't need to hold an election in the first place. So given a set of voter preferences in Pennsylvania or Ohio or wherever, it might turn out that both computation methods yield the same winning candidate, but not necessarily. And so while instant runoff voting is a good method, there's another method that I think ought to be tested among the laboratories of democracy in the states, which I call round robin voting, which is a sort of

different version of ranked choice. But, you know, Congress shouldn't impose that, which is why among my menu of options, I think Congress should kind of set a floor and expect that we have majority winners and then let states experiment with the particular way to achieve it, of which instant runoff could be one, this round robin idea could be another, and there are a few others we could talk about as well. All right, Nick, what do you think? How do you like your menu? Well, Ned presents a delicious menu of reform there. So I think we got to start with identifying where the problem is in the system.

And in our view, it is the idea about partisan primaries themselves in the sense that the public benefit of having a primary is that you take a large field of candidates and you winnow it down to a smaller number so voters can make a more informed choice in the general election. Now, if the parties want to recruit and support and endorse a candidate in their own way as private organizations, more power to them. But that's not the purpose of taxpayer-funded elections. And so the system that we endorse at United America is going from partisan primaries to what we call nonpartisan primary. Essentially, all the candidates run in a single election, all the voters get to be able to participate in that election. and the top two to four finishers go to the general election, where through an instant runoff, a majority winner would emerge. And this can take different forms.

So in Washington and California and Nebraska, for example, they have a top two nonpartisan primary. Alaska adopted the first top four nonpartisan primary in 2020 that will be used this year. The impact of this is that every voter gets to cast a ballot that matters. So whether you're a Democrat in a red district or Republican in a blue district, you still get to have a say in who your elected representative is, that just currently isn't the case under the current system, including in nine states where

over 10 million independent voters are effectively disenfranchised altogether by closed primaries. So under this nonpartisan primary system, it yields a general election in which there's more than just, under the Alaska's rules, for example, there's more than just a binary choice between Team Red and Team Blue. There are multiple candidates that will have to campaign on, go figure what ideas they have, why you should support them,

not just why the other side is evil. And that gives an incentive for those candidates to campaign to the whole electorate, who they will represent in office. So if we want leaders to put country over party and the public interest

over special interests, this is a system that can help get us there. Okay, but Alaska, you know, adopted this. don't see a stampede of states moving that direction. And there's been at least one academic study that showed that Maine, which adopted ranked choice voting, didn't see a lowering of temperature or a more bipartisan spirit in who they're electing. We'll see what happens in Alaska. There's

been studies that show that actually New York and San Francisco that both adopted instant runoff ranked choice voting for their mayorial elections, it didn't change who won. So does this matter and will it actually do what you hope, Nick? Well, I think we have to be really intentional about identifying the power in Alaska's reform is that it both replaces partisan primaries with the top four nonpartisan primary and implements ranked choice voting in the general election. The other locales that you mentioned, including Maine and New York, only was a ranked choice voting reform, which is better than the status quo, but it doesn't address the primary problem. States that have, including California and Washington, for example, there have been studies that show candidates

elected under such a system where 18 percentage points less extreme when you look at roll call votes in Congress than candidates elected under close primaries. We think the top four reform can take that, you know, even further. And regardless of what we see in terms of the results of who's elected and their incentives to govern, let's not miss out on the underlying point, which is that this will enfranchise a lot of voters who are not enfranchised under the current system. When we looked at the 2020 election, for example, 83% of congressional seats were effectively decided in the primary, and only 10% of the country cast ballots in those primary elections. And so there is a good on its face of having more people involved in the process of choosing their representative,

and hopefully that will yield a more representative and functional Congress on the other end. Ned? I think Nick's absolutely right that even though both Maine and Alaska use ranked choice of voting, the way in which they use them is very different. And so I think Nick is correct that this decision about whether you want partisan primaries or non-partisan primaries to feed into the November election is just as important. an issue in terms of thinking about reform and designing the system overall as whether you want to use a ranked ballot or not and exactly how you want to structure it. So that I think is one very

important point to focus on. The other one is I think which reform works best may depend on which state and the politics of the locality, which is why I think Congress shouldn't mandate one system and we should allow for experimentation. So, for example, Well, you know, Senator Murkowski may not win, but the campaign dynamic is going to be very different in Alaska between Murkowski and her Trump-endorsed challenger than if Alaska used its old system, which is the conventional system. So I think there's pretty good reason to believe that the rules do make a difference and change the nature of the campaign and also change the potential of who. can win. And I think, you know, Representative Liz Cheney would be in a much better shape if Wyoming were to use the Alaska system, where Wyoming uses the conventional system, and Cheney is

going to have a tough fight against her Trump and George Challenger. But if you look at my state of Ohio, which is the reason why that's different than Wyoming and Alaska is, Alaska and Wyoming are states that are so deep, deep red, that the Democratic Party really is not much of a competition. Ohio is moving red, and it's not as purple as Pennsylvania, for example, but the Democratic Party is still pretty robust in Ohio, or we would like to think so. It's certainly not in the situation of Alaska and Wyoming. And there, if you try to imagine adopting the Alaska model in Ohio with instant runoff voting, you start to actually wonder whether or not it would have as much of a practical difference as one might like, given how polarized the electorate is.

Because if the middle is losing ground relative to the extremes in terms of voter preferences, instant runoff voting in November is still going to, what instant runoff voting does is look for the lowest, you know, the weakest candidate in terms of first place preferences on that ranked ballot. So just imagine, for sake of simplicity, a three-way race between left, right, and center. If center is the weakest of the three, that's the candidate that's going to get knocked out first. And so the general election is going to come down to the conventional race between left and right. You won't have a spoiler effect, but you're still going to have ultimately a polarized outcome. What's different about the round-robin voting methodology is it looks at those very same rankings

and it conducts a round-robin competition. If you remember from any of your sports as a kid, a round-robin is when each competitor has to go up against every other competitor. So what the round-robin process does is, okay, let's look at center versus left, center versus right, left versus right. We're going to have three different competitions off of those ranked ballots. And again, using Ohio as an example, the center might beat the left and the right if given the opportunity. And, you know, I came to this idea watching Senator Rob Portman retire. And I'm thinking, why is he retiring? He's not too old. You know, he wants to do government.

Yeah, maybe he's sick of dysfunctionality in Congress. But again, the Congress that we have is a part of the system that that creates the Congress. And if, you know, if Portman, if Portman ran as an independent against both J.D. Vance, this 30% essentially winner of the Republican primary versus Tim Ryan, the Democrat, I think it's pretty fair to say that given Ohio's general electorate in November, if it's Portman versus either one, Portman wins easily. But he probably wouldn't win the instant runoff method, because once Vance has that Republican nomination, that's going to get him, you know, 40 to 45 percent of first place votes, maybe not quite that high, but roughly. Tim Ryan, again, Democrats are strong enough that Tim Ryan's going to get 40 to 45 percent of the votes.

So Portman doesn't even have a shot as a more centrist alternative in an instant runoff system where he'd be the winner in the round robin system. That's why I think we have to open up the reform conversation, look state by state and say, what's best? And again, this is both a governance question and a saving democracy question because I'm worried about a Senate that has more J.D. Vance's than Rob Portman's.

And I say that from a nonpartisan perspective that just wants democracy to work, given the fact that some of the candidates this year you know, don't seem to be willing to respect the democratic process, unfortunately. For dispatch listeners, this is basically like Christmas for me. I mean, is there anything better than hearing a really nuanced conversation about how math works in helping democracy? It's like all the parts of my brain firing dopamine at once. So I'm having a lot of fun. Let's keep going. So first of all, Nick, in Alaska, though, Lisa Murkowski's already won a race without any of this.

She went as a right-in candidate after losing her primary in 2010 still won. So maybe the problem isn't, you know, that the primaries don't work. Maybe it's just that the candidates aren't good enough and you need to be a Lisa Murkowski because it can be done. And I'm curious, given Murkowski's own experience in 2010, how did Alaska actually do this? Because when we talk about incentives and you talk about how 10% of America, right now get to elect 83% of Congress, I would think those 10% of Americans have quite an incentive to keep that power. That sounds fun. If you vote in a partisan primary, your vote counts a lot. Indeed, but there are 90% of us who would like a little bit more say in that process, which is why I think when these ideas are put to the voters directly, they're broadly popular and I think stand a good shot at expanding from Alaska to many other states in the years to come. I think 2010 was a different era entirely in our politics. I don't think Senator Murkowski would stand a shot of the right-in candidate, given how polarized the politics have

now become. But regardless of how to game out whose position to win, with this reform, just to bring it back to its basics is designed to do, is empower the broadest cross-section possible of the voters. And it's the voters, really, that we need to center in the conversation because they're locked out of the current system, most of us right now. The good thing is that these reforms don't require a constitutional amendment, while an act of Congress would be nice. To Ned's proposal, it's also not required. Our constitution already gives power directly to the states

to determine the time, place, and manner, so to speak, of elections. And so every state can determine the way that their primary process ought to work if they want majority versus plurality winners. and they can do that either through direct ballot initiatives in about 24 states that allow them or through the legislative process. And it's important to remember we've done this in significant ways as a country before. If you go into a voting booth a century ago a little bit more, there was no secret ballot, right? There was no office of senator on your ballot because they were elected by state legislature. There was no primary because the party bosses were deciding

that in proverbial smoke-filled room. So we've updated the system before, and it's part of the tradition of the country to continue to do that. And that's what we saw happen in Alaska when a coalition of Democrats, Republicans, and independents came together to put this idea to a ballot initiative in 2020, which was adopted by a majority of Alaskans. And so that is a process that we hope to see unfold in many more states in the years to come. With the idea that But all states do not need to do this in order for it to have an impact in Congress. Imagine if five more states did over the next two election cycles, that would be 10 more U.S. senators, dozens of more U.S. representatives who have been effectively liberated from the primary

problem. That's your coalition of leaders who I think can form and rebuild the sort of political and pragmatic center in our Congress to address the big problems that the country is facing. So what states is United America really focused on that could be those five states? Well, in this election year, we're closely watching what's happening in Missouri and Nevada where there are citizen-land initiatives headed for the ballot in November. And we're looking at other states to build a pipeline of campaigns for 2024. The power to do this is in our hands. We need people to found campaigns, to get involved in campaigns, and especially to fund them.

that's what we're building at United America as a cross-partisan philanthropic community to dramatically scale resourcing to this movement. In the 2020 election, we spent $14 billion as a country on elections, mostly fueling the problem of polarization through 30-second television advertisements that convinced one half of the country why the other is evil. We only spent $35 million on any ballot campaigns for electoral reform, just to put that in perspective. if we want to fix the system, we ought to really invest in it at the size and scale of the problem that we're facing. Not long ago, I saw someone go through a sudden loss, and it was a stark reminder of how quickly life can change and why protecting the people you love is so important. Knowing you

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families already applying through ethos, it builds trust. Protect your family with life insurance from ethos. Get your free quote at ethos.com slash dispatch. That's ethos.com slash dispatch. Application times may vary. Rates may vary. Net, I'm curious because we've, I think, scratched some itches for some math nerds, some polyside nerds, some democracy nerds. Can we scratch a little more of the itch for the history nerds? You know, Nick talked about, you know, 130 years ago, how different your voting day would look. How did primary, partisan primaries come about? Because my understanding is this was the reform.

Right. You know, there was the first gilded age that led to the first progressive era. And some people think we're living in the second gilded age and that we need the second progressive era. You know, so, but thinking historically, you know, we have evolved our electoral process, as Nick said. Not only have we expanded the franchise from just, you know, property owning white males, essentially, to, you know, the goal of all adult citizens. But we've also changed. I really enjoy voting. I have to tell you.

But in law school, I remember a guy saying that the 19th Amendment is what called. World War II, which I thought was a weird argument on several fronts. First of all, who comes out against the 19th Amendment? Second of all, was World War II bad? I thought we were, I thought probably that was a good, pretty righteous war that we fought there and probably worth fighting. So anyway, I have taken that to heart and make sure I vote all the time, as many times as they'll let me. Yeah, there's even a proposal on the table that America should adopt Australia-style mandatory voting. I'm not sure our country would, would go. for that. But, you know, that, you know, I mean, I think, you know, given the state of American

democracy, you know, let's brainstorm about how best to fix it. But, you know, Nick mentioned that originally U.S. senators were not elected by citizens. They were elected by state legislature. So we've, you know, our original, you know, Madisonian constitution had a pretty limited role for participatory democracy. And, you know, over time, we've expanded the franchise such that we're putting more pressure on our electoral process to do more of the governance. And, you know, our Madisonian checks and balances and separation of powers, which might have worked in the 18th or early 19th century, are causing a serious problem in terms of blocking what voters want, what they're telling upholsters and stuff that we want our democracy to achieve, and yet they

can't achieve it. So we have to kind of recalibrate our institutions. Primaries came into the system, as I said, mostly at the end of the 19th, beginning of the 20th century, because of a sense that the smoke-filled rooms, as Nick was saying, was limiting choice. And it was the desire to avoid corrupt politicians and to open up the process to give voters more of an opportunity. So it had a good impulse. But again, because the plurality winner rule was the usual rule for elections, people, didn't think through how plurality winner primaries would cause this kind of fragmentation and put on the November ballot, you know, choices that may not be the choices that the November voters most want to have. There's also been a hidden development that most Americans

are probably not aware about in terms of the rise of what are known as sore loser laws. You asked about Murkowski. Again, she had to be a right in. Nobody likes a sore loser, so a law that prevents them sounds like it makes sense. But again, what is the goal, Nick talked about how the government pays for primaries. So although we call them party primaries, they're really the government's first step in a two-part process to get a single winner in November. And so if the candidate, the winning candidate in a so-called party primary only gets 30% of the vote, Maybe the loser in the primary ought to be on the November election ballot.

Look at this recount right now in Pennsylvania between Oz and McCormick, right? Whoever wins, it's pretty clear that essentially an equal number of primary voters wanted the alternative. And then because it was essentially a third, a third, a third split, there's yet another, you know, piece kind of missing. Why shouldn't McCormick be not be on the ballot in November if Oz gets the so-called. called nomination with only 30% of the vote. So in the old days, you could actually run again in November as independent, even though you weren't technically the party nominee. Well, state said, we don't want to do that.

That messes with two-party duopoly. And they made the argument, which has some purchase, which is, wait a second, we're trying to get a majority winner in November. We have a two-party system. Let's not clutter the ballot with extra alternatives. They had a chance to win in the primary, so they're a sore loser if they're on the ballot in November. But again, if you think about instant runoff voting and the ability to have the November voters say, hey, do we want to elect the Democrat Federman, right, in Pennsylvania or do we want McCormick or Oz, you could offer November voters that three-way choice, even though Oz gets the nomination because he eked out of a narrow primary victory. So we have to decide what we want our elections to do and why. And primaries were invented to

solve one problem. They may have solved that problem, but they created another one in its place. All right. I want to end this discussion with my own problem thesis, whatever you want to call it and get your reactions to it. So for me, the most important part of all of this, oddly, is bucket number one. I want to change who runs. I don't necessarily feel like we should be tinkering with who wins because then it's just changing the math, if you will, of, well, we think this has more voter preferences, you know, the instant runoff versus the round robin, things like that. But I think we have a real problem with who's not willing to run for Congress anymore compared to 50 years ago. And I think about the judicial filibuster. I think we've wildly changed who wants to

become a judge when we got rid of the judicial filibuster and how those people behave who do want to become judge. And obviously the same thing is happening in Congress. You have people running who, when they get elected, don't even hire legislative staff. They just hire more comm staff and bookers to help them. We have 535 cable news pundits, it feels like. That's no way to run a railroad. I am totally convinced that our partisan primaries are a large part of the problem. I am even partially convinced that what y'all are proposing would help. But I'm not totally convinced, and I'll tell you why, because I think there are other influences that we're not discussing in this conversation, other incentive systems that exist outside

of just the ballot box, for instance. And listeners will know my hobby horse here. the bipartisan campaign reform act of 2002 really changed the incentives for raising money for office. You went from parties being very strong, having soft dollars, meaning unlimited money for party helping events, get out the vote efforts. Yeah, they were party slush funds. And it sounded really bad when McCain and Feingold were talking about them that, you know, there's just, these parties are just oozing money and they're using it to elect candidates. And so it really should be regulated. And I will tell you, as a college student hearing all that, I was like, yeah, that sounds right to me. That is a problem. So that was one part of the Campaign Finance Act.

It basically stopped the money flow to parties entirely. And so we have incredibly weak parties compared to 20 years ago. The second part of Bikra was that it changed the fundraising for candidates as well. Having a pretty low limit on individual donations and even PAC donations, you know, right now it's $2,900. Candidates have by and large stop doing what we call large dollar programs, meaning they don't spend a lot of time raising $2,900 at a time from high net worth individuals. Instead, they can save time. Don't go to that rubber chicken dinner. with a bunch of sort of moderately rich people and instead everything you do can be a fundraiser

if you're doing it 20 bucks at a time. And the problem is the type of people who are willing to give $20 to a political candidate are quite different than normal voters. And two, the things that will get them to give you $20 are saying, attention-grabbing things on social media or cable news and things intended to create outrage. Anger. Anger is the most motivating emotion in our little brain stems, and it will get us to do almost anything. Just look at history. So my thesis to both of you that I want you to weigh in on is that what you're proposing is great. And I think it makes sense, and I like it, and it feels good. But at the end of the day, there's other things like the campaign finance system where we eviscerated parties that actually made the problem far worse.

And it's led to this polarization. And so what you're talking about is then getting rid of partisan primaries. Well, when we weakened the parties, it has created, I think, Ned, this authoritarian tendency that you hate the most. And when we told candidates, we disincentivized raising large dollars and told them to raise money from all the voters. Well, that also had perverse consequences and that now they're raising money from a very small number of highly outraged voters who like giving 20 bucks to a political candidate the way they buy like a lottery ticket at the 7-Eleven. And those are the types of candidates that we're getting, the people who thrive in that system. So we'll start with you, Ned. Why is your fix better or more correct,

more holistic than my problem spotting of the campaign finance system? Oh, I don't know what it is. I think you should take both vitamin C and vitamin D, right? And you don't have to choose between the two of that. We don't need to rank choice our reforms, right? We need, you know, so I'm perfectly willing to say that our campaign finance rules have created very bad incentives for exactly the reasons that you say. And we need that reform, but we do all, But that by itself also won't solve a problem. You need both vitamin C and vitamin D. You know, so I, on the point about not wanting to weaken parties too much,

I do think that is something to think about. And again, if we didn't have to worry about authoritarianism, I might be willing to say, let's just have two very strong parties. Let's make Duverjee's law really work. you know, by making it hard to have minor parties and independent, sorry Nick on the November ballot, but we fix the primaries so that the primaries are not crazy, irrational things, and then we get two solid candidates. I don't think that's a feasible option now because of the current state of American politics. And so I think now we do need something like the nonpartisan primary

that Nick is talking about match with some form of rank choice voting. Parties can still exist. Parties can endorse and nominate through their own methods. So I'm on board with that. If for whatever reason a particular state is just too enamored with partisan primaries that it doesn't want Nick's proposal, then I think we need to open up the November ballot to a genuine third and fourth option through a different November of voting system, whether again, instant runoff or round

robin or something. Because in a world of two parties where one party is ambivalent about democracy itself, that is dangerous. And that's why I think we have to meet the moment with what the major threat is. So the attitude, I view this as like a doctor trying to prescribe medicine for a patient that unfortunately is very sick. And so the question is, what's the right medicine? Let's not be pure about this. Let's just find a medicine that will keep democracy alive kind of thing. And the right medicine actually may, again, vary state to state. So if I'm lucky enough to be around in 20 years and say, what is the best electoral system? My answer might be different than today. We don't need a platonic electoral system. We need a workable electrical system. We need a workable

electoral system for America right now. All right, Nick. Why do we think that your ideas aren't going to have these unintended consequences that McCain and Feingold were trying to do good stuff here, right? 2002 wasn't some low-minded bill. This was to stop money in politics, to stock corruption. But maybe 20 years later, it's actually ruined our experiment in self-government. It didn't take long.

So why shouldn't we be concerned that you'll have unintended consequences? The campaign financeism is surely a problem. I think our perspective is that the primary process is the biggest solvable problem that we face. Again, going to the point of not requiring a constitutional amendment or an act of Congress, these are things that are happening and can happen at the state level. We shouldn't be in search of the perfect system because there isn't one. I think the standard that we have is can we do significantly better than the system is obviously failing us and not just from a policy standpoint,

but from a standpoint of can we preserve the American experiment? That's the conversation that we're having right now. It's a year and a half after January 6th, where for the first time a peaceful transfer of power was threatened in our country. And you had Donald Trump standing on the national mall right before the insurrection saying, we have to get your people to fight.

And if they don't fight, we primary them. The primaries have been weaponized in this war, our democratic institutions. And so, yes, it's important to sort of put out the fire on the House right now, but we have to turn off the gas. And the electoral system is that right now. It's fueling this problem. And it's eminently fixable.

And to your point earlier, Sarah, I think it's not only about greater empowerment to the voters and leaders that are incentivized to act in the public interest, it's about creating an electoral system in which our best and brightest leaders in our country in our country want to serve. There was a study done looking at the state legislatures and who steps up to run for Congress. Well, it's not the pragmatic problem solvers. The study found that it's

those that are the greatest ideological fit to where the parties are that wind up running because they're the only folks that can see themselves actually being electorally viable. And so if we want to change the candidate pool, if we want to attract the best leaders to our nation's governing institutions, I think we have to look at not just who we're electing, but how we're electing in our country. And that's why electoral reform, I think, is the cause of the decade. Amazing, guys. Thank you so much for this conversation. Last question to each of you lightning round, which primary are you most interested in seeing the results of at this point, whether it's just an interesting outcome, an irregular primary, or some experiment going out

there that people can watch along the lines of what we've been talking about. What's your go-to this summer, Nick? This one's easy for me. June 11th is the special primary to fill Representative Don Young's seat in Alaska. It'll be a two-round election, but the primaries on June 11th, it's happening all by mail. There are 48 candidates running in this election. You not only have traditional conservatives and Trump-aligned candidates, you also have folks like Santa Claus, who's an actual city council member in North Pole, Alaska, who's currently polling in fourth place. It's going to be a colorful election to see what comes out of it. And August will be the special general election, and it'll be the greatest experiment in electoral reform in about a century. And we're very excited to

see how Alaskans will fare in the system and the kind of outcomes that we get. Ned? So I'm going to cheat. There are five states that I've got my eye on for the same reason, because five U.S. senators, Republicans who were not of the Trump wing of the party, all retired. I mentioned Portman before, but you have Blunt in Missouri, Toomey in Pennsylvania, Shelby, in Alabama, Burr in North Carolina. And so I'm looking for how each of those states handles those retirements and who ends up replacing them, both the connection of the primaries and how it feeds into the general. Because I think the fact that it's five shows this is not idiosyncratic. As Nick said, this is a structural problem. And let's just see how our system deals with it.

already happened. I was very curious. There was bound to be some close election in all of these primaries, intra-Republican Party and how the Republican Party would deal with sort of the rigged election language within an intra-party fight. And so I am, of course, still most closely watching Pennsylvania as that recount unfolds and the lawsuit involving counting undated ballots continues. Thank you both so, so much for this conversation. the best, right? Like, this is the sort of stuff that I love talking about

more than any individual race. It's systems, it's incentives, it's process. You can ask poor Steve Hayes. This is like what I harp about behind the scenes as well. Process. I love process.

And you two are process geeks and friends of the pod. So thank you both so much for being here. Nick. Yeah, I was going to say, here comes the plug. Primary problem.

US for those in your audience who want to learn much more. and track these primaries as they happen to see just how many Americans are effectively determining their outcomes. And, of course, we'll put the Law Review article from Professor Foley. It's in the show notes. You can read it there for those who thought, you know what, this conversation was not nearly nerdy enough. Then let me give you a law review article about it. And thanks for highlighting the importance of this issue, because we spent it a lot of time on elections in the last year, but relatively little time on.

this structural issue, which is, we obviously think, really, really important. So thanks for highlighting it. With Amex Platinum, access to exclusive Amex pre-sale tickets can score you a spot trackside. So being a fan for life turns into the trip of a lifetime. That's the powerful backing of Amex. Presale tickets for future events subject to availability and varied by race. Terms and conditions apply. Learn more at MX.ca.