Fixing a Hole

Lawrence Lessig appeared on WBUR’s On Point to promote his and Matthew Seligman’s latest book back in April. Their review of technically-legal strategies for subverting the will of the people felt increasingly urgent as the 2024 US Presidential election approached. By October, when Lessig spoke at the Boston Book Festival, I felt I had to pick it up. Also I wanted his autograph¹.

It’s a solid primer on the US’s Electoral College, and as a critique, it avoids the kind of dryness you’d expect from election science writing. The authors make it still more readable by mixing in voting scandals (both historical and hypothetical) ranging from the subtlest actions of John Adams and Thomas Jefferson² to the decidedly-unsubtle events leading up to January 6, 2021. Actually, I was surprised by how much transpired that day besides the insurrection.

Less surprising is how deep into the weeds the two lawyer-authors go when it comes to legal technicalities. They include a two-page flow chart to explain just one of the loopholes. Despite their best efforts, I had trouble following every detail. I’ll accept some blame here–the election occurred while I read³, and as a result, I suddenly found the threat of foul play to be less compelling.

That’s not to say this book is ultimately irrelevant, though. These legal loopholes exist even in the absence of dispute, and they still need fixing. Still, although those exploitable ambiguities inspired the book’s unabashedly clickbait title, they don’t actually comprise the authors’ most sobering warnings.

As an activist and a professor, Lessig embodies the idea that dissent is patriotic. Years ago, he convincingly argued that Citizens United v. FEC is SCOTUS’ worst modern decision. Here, he and his co-author remind readers that Shelby County v. Holder continues to be catastrophic in its own right. And then there’s the “winner-take-all” system that Americans tolerate in Presidential elections. Just like with money in politics, Lessig skewers this system with the authenticity of a professional dissident–one who made his case in court.

The authors’ most important lesson concerns the limits of their own abilities. They repeatedly stress that government inescapably depends on the integrity of those in power.

[…] The rickety and flawed Electoral Count Act never cause real trouble in its 135-year history because, until 2020, actors from both political parties sacrificed their own political gain for the good of the nation.

If good faith disappears, it’s not clear that any system of rules can regulate the process perfectly. If each side comes to view the other as criminal or worse, each may feel entitled to do whatever it takes to ensure its own victory–including ignoring the law completely.

We can’t legislate good faith. We can only practice it. And we can only remark on how difficult it is to practice good faith in a world where the political media profits from rendering us less trusting and more outraged. […]

…adding to the chorus of smart people arguing that the answer must come from unity.