consequences. big consequences. [cheers and applause] mr. trump: on health care reform, every day, the law known as obamacare is destabilizing our health care, really destabilizing it, surging premiums and forcing providers out of the market. if we don't act, the damage will be irreversible. we are going to act. that is why we are going to arerump: that is why we going to repeal and replace obamacare. we have no choice. we have no choice. we have absolutely no choice, so we are going to repeal and replace obamacare, and you are going to get health care at a much lower price with a much lower deductible. . it is so high now, it really cannot use it.

we are going to have great much lower, at a price. i'm asking congress to pass legislation to make safe and affordable childcare accessible to all and people like that. ivanka trump, did anyone hear of ?vanka trump support the to incredible men and women of law enforcement and we are going to bring this terrible crime wave to an end. [cheers and applause] mr trump: highest and 45 years, the murder rate. on immigration, we'll be the administration that ended in legal immigration. [cheers and applause] we will construct a

great border wall, dismantle the criminal cartels, liberate our communities from the epidemic of ang violence and drugs. we will get rid of the drugs that are pouring into our country. [cheers and applause] mr trump: we will ask congress to reform our visa and immigration programs to protect wages for american workers and we will be appointing very shortly, somebody to head up our program and i will tell you, this person, like general mattis, will do a phenomenal job. we will stop people from coming into our country illegally, but we will have people come into our country and they are going to come in by the thousands and the hundreds of thousands, but they are going to come in, they are going to come in legally, right? but by the hundreds of thousands. we want people to come in, but they have to come in legally.

to protect our country from terrorism and extremist, we will suspend immigration from regions where it cannot be safely processed. [cheers and applause] mr. trump: right now, thousands and thousands and thousands of people are pouring into our country. we have no idea who they are, where they come from, do they love us? in a lot of cases, no, they don't love us. [laughter] mr. trump: a trump administration will always put the safety and security of the american people first. remember that. the safety of the american people. ethics reform will be a crucial part of our 100 day plan as well. we are going to drain the swamp of corruption in washington, .c. [cheers and applause] mr. trump: we are going to.

i will impose a five-year ban on executive branch officials becoming lobbyists, and a lifetime ban on officials becoming lobbyists for a foreign government. [cheers and applause] mr. trump: we face many, many challenges but this is truly an , exciting time to be alive in our country, and hopefully to be alive in many other locations because we are representative, , to a large extent, of what is happening in the world. the world is looking up to us, but they have not been looking up to us much and they are going , to start looking up again. we are going to be good for the good for ourst country. [cheers and applause] mr. trump: the script to what we are doing is not yet written. remember, this has been a great, great movement. the likes of which they have never seen before. the likes of which, those folks back there that write the stories -- [booing]

mr. trump: no, no, no. i will tell you. and they are saying it. "we have never seen anything like this before." we are going to show them. we are going to do a great job. we are going to create a safe country we are going to , create a prosperous country, we are going to have great jobs again. not bad jobs, real jobs. and it is going to be something special. and hopefully, they are going to write the truth. [cheers and applause] mr. trump: we don't know what the page tomorrow will read, but for the first in a long time, what we do know is that the pages will be authored by each and everyone in this room and in our country, by you. it will be authored by you. together, we will raise incomes and create millions of millions -- and millions of new jobs. its going to happen. its already happening. you saw what happened today.

we will reestablish the rule of law and defend the constitution of the united states. [cheers and applause] and by the way, we will be appointing great great , supreme court justices. we will be starting very soon. with one to replace justice scalia. great man. we will protect the right of every american to live in safety and peace. we will restore and respect , and we will respect people's rights. we will respect constitutional rights -- >> yes, sir! mr. trump: and for all america, we will respect our great american flag again. believe me. [cheers and applause] mr. trump: we will heal our divisions and unify our country. when americans are unified, there is nothing we cannot do. nothing. no task is too great, no dream too large, no goal beyond our

reach. my message tonight is for all americans from all parties. all beliefs all walks of life. , it is a message for everyone. no matter your age, income or background. i am asking you to join us in this great, great adventurous world that we are living in. we're going to make it less adventurous. we are going to make it safer and better than it has ever been before. i'm asking you to dream big again as americans. i'm asking you to believe in yourself, to believe in your country, and to believe in your future. we have a great future. what i have seen more than anything else is how great the future of our country is going to be. and if we do that, and all together, we will make america stronger than ever before. we will make america rich again.

a lot of people don't like the sound of that, but we need that to take care of our military, to take care of our veterans, to take care of all the things. we're going to be a rich nation again, we are going to be a wealthy nation again. [cheers and applause] we're going to make america like it says in all of those caps, those millions and millions of cap's that have been sold all over the country. we are going to make america great again, greater than ever before. thank you, north carolina. thank you, we love you. god bless you, everybody. we will be back soon. thank you, north carolina. thank you. [applause] ♪ [choir] ♪ i saw her today at the reception. a glass of wine in her hand.

i knew she was going to meet her connection at her feet was footloose man. you can't always get what you want. you can't always get what you want. you can't always get what you want. but if you try, sometimes you might find you get what you need. ♪ ♪

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♪ ♪ c-span, house democrats hold a forum on the u.s. elect for college to top about using the popular vote in future presidential elections.

after that, a discussion about freedom of speech in politics. >> a senate panel today examines /timempact of the at&t warner merger on consumers. we will hear from the ceo's of at&t and time warner. live coverage on antitrust and competition begins at 10:00 a.m. eastern on c-span3. later, the house rules committee works on a resolution to fund the federal government through april 28, 2017. current funding runs out friday at midnight. the committee will work on a water resources measure that includes money for flint, michigan's lead tainted system. coverage starts at 3:00 p.m. eastern on c-span3. you can stream it live on www.c-span.org or listen for free on the c-span radio app. >> c-span's washington journal,

live every day with news and policy issues that impact you. coming up, just off his unsuccessful bid as house minority leader, tim ryan of ohio will discuss the future of the house democrat leadership, his views on the 2016 election results, and donald trump's pending presidency. will talk about how republicans plan to handle the affordable care act and what impact this will have on consumers, but new york university history professor will talk about the 75th anniversary of the bombing of pearl harbor and its impacts on the u.s.'s role in the world. be sure to watch c-span's "washington journal." join the discussion. conyers, then john ranking member on the committee. they held a forum to discuss the

electoral college. we will he or about the history of the system from authors and law professors. this panel talks about making changes to the electoral college in the presidential elections. [gavel pound] >> the committee will come to order. good afternoon. i want to begin by thanking the members as well as the panelists, all of whom are present, for participating in today's forum on the electoral college. we are holding this panel because recent elections and public sentiment have made it clear that there are serious problems with the present system for electing our president in

-- president and vice president. we begin with the fact that hillary clinton received more than 2.5 million more popular votes than donald trump, the largest divergence between the popular and electoral vote in our nation's history. this constitutes the very definition of anti-democratic in my view. under our current system, the votes of millions of people in non-swing states are effectively lost when they voted for the candidate who loses their state because all of that state's electoral votes will be given to the other candidate. this is why members of congress over three years over the years have introduced more than 700 proposals, 700 proposals to eliminate the electoral college.

this is why 11 states, accounting for 164 electoral votes, have entered an interstate compact to cast their electoral votes for the popular vote winner and legislation to enter the compact has been passed by at least one legislative chamber in five more states. and this is why a recent gallup poll showed that more than 60% of the voters support direct popular election for president. we also must face up to the cold reality that the electoral college is rooted in slavery, and here's how that works out.

as a professor explains to us, slave states opposed direct elections for the president because in a direct election system, the north would outnumber the south, whose many slaves could not vote but the electoral college instead let count theern state slaves, although with a 2/5 discount. they counted for 3/5 of a person 's overall count. in my view, this is somewhat anachronistic. electoral college defenders say that it serves to check the passions of ordinary voters, yet the framers did not account for

the rise of political parties when creating the electoral college. in fact, the electoral college today serves to aggravate those passions when most of our citizens are told they are living in either a red or a blue state rather than part of a single indivisible union. defenders also claim the present system helps protect small population states and rural areas from domination by large population states and urban areas. in fact, under our current system, candidates overlook most states large and small and instead focus most of their time, it seems to me, campaigning in only a few of the so-called swing states.

it has also been argued that the electoral college serves to correct poor decisions by voters at a time when they were relatively ill-informed because of nationwide communications were poor. literacy rates were low. and the nation's political system was undeveloped. today, of course, we live in an era of instant mass communication, high literacy rates, and a robust and sophisticated political system. most importantly, i want everyone in this room to understand that today's forum is not an isolated event. rather it is part of an ongoing process that could lead to change and reform. whether that change will come through a constitutional amendment, an agreement between

the states comprising 270 more electoral college votes, or a subsequent interstate compact approved by congress, i cannot say and probably none of us can. each of these options presents important political legal questions, and i look forward to exploring them with you today. but i can say that change only comes when we have discussions such as today, when states experiment and take action and when the people become directly engaged. as a member who cares very deeply about the future of our democracy and the principles of one person-one vote, i very much

intend to remain engaged in this issue and moving it forward and i hope that all of you will join me in that activity. rep. conyers: i want to now recognize -- i think the distinguished gentleman from new jerrold nadler who has , worked on these and other constitutional questions quite diligently. >> thank you, mr. chairman. i am pleased to join this forum in here from our distinguished panelists. i believe we must move away from the electoral colleges and toward a system that guarantees the one of the popular vote actually becomes the president of the united states. it should not really be considered a radical idea. this is a matter of crucial importance to our democracy and

the good news, it's considered elementary in every democratic edge of the world. only here is that novel. the good news is there are practical steps we can take to reform the electoral college and make a real difference in how the president is selected. as you know the popular vote , winner differed from the electoral college winner just three times in the 19th century. the last time then was in 1888. the electoral college did not differ from the popular vote again until 2000. where did not make a difference, so we as a nation got complacent. we figured it was irrelevant, did not matter. in the year 2000, 16 years ago, al gore won the popular vote by 540,000 but lost in the electoral college after the supreme court stopped the recount in florida and awarded florida's vote to then-governor george bush. this year just 16 years later, , hillary clinton won the popular vote by 2.5 million votes.

2.5 million votes and counting but lost in the electoral , college. electric college seems to be getting more disconnected from the popular vote. we didn't have to worry about it for 112 years and suddenly twice in 16 years a 2.5 million , difference. we are getting less democratic, with a small "d." some proponents argue it is necessary to protect smaller states by giving them an outside influence, however the small states are already protected in some form as they need protection by having outside influence in the united states senate. mr. nadler: each state is guaranteed two votes. wyoming was 600,000 people has the same two senators as

california. 53 seats, it is probably about 35 million people. and they don't need to ask her protection in the electoral college as well. the difference in the population between small and large states is much bigger now than it was when the constitution was written. we've gone to the point where about 20% of the population of the united states can elect the majority of the united states senate. that is ample protection for the small states. we must also remember that the electoral college was designed to enhance the power slave states. the slaves counted as 3/5 of a person when it came to determining voter representation in the house and therefore in the electoral college. that motive, although no longer operative, should not influence anything today. the other reason the electoral college was created to protect us from democracy itself as well as from poor communications. the founders feared direct democracy. today, we do not feel we need protection from democracy and will to move to a system that elects the president from popular vote. asking states that have

benefited from the electoral college to vote for this is to ask a lot. we don't have to do this. we have the national popular vote initiative. i was proud to play a role to ensure the new york state adjoined the initiative and i think we should continue to pursue this method to render the electoral college moot. this is an interstate compact that state's 270 more electoral votes agree that once 270 votes worth of states ratify that their electoral votes will be awarded to the winner of a national popular vote which seems to me the way to go. whatever it takes, it is time to

>> i would like to call on steve cohen. >> i would look on the coming vote of the electoral college. i have introduced a bill that would amend the article on the electoral college and call for direct election. it is hard for people to fathom plurality, twoge point 5 billion people, voted for one candidate and she is not the president. since i introduced my resolution, i have had quite a bit of comment on facebook, on twitter, and letters to the editor. it is amazing that most of the people that have responded have been against the proposal.

they consider, these are most of the people who supported the president who was the populist to drain the swamp. but in their argument, they argue that allowing direct election would be the tyranny of the majority, and that you would let the rabble role. well, it is ironic that the presidential candidate was the opposite. he was for the common man. he was for draining the swamp. he was for changing things in that regard. the tyranny of the majority they talk about is hard to fathom. often times, in our courts, they give us these rights, sometimes the bill of rights does, sometimes the congress and legislatures, but mostly it is the supreme court that protects nine already's from the tear any of the majority, and yet, most of these folks that respond to me, and i checked them pretty close before i give them a bruce dios, they are not

for the court decisions that protect minorities from the tyranny of the majority, but people seem to take their argument based on the outcome. i am not pleased with the outcome. but i do know that intellectually, the electoral college is an and equidistant revision. it may have served in the late 1700s and while the founding fathers, and that is always ," andd with a capital "f i think the world of jefferson, he did a lot of wonderful things, the founding fathers were not perfect. they did have the 3/5 compromise and slavery being a legal institution of this country. they did not give women the right to vote and people the right to elect directly united states senators. they believed in their power. any believed there was aristocracy, in essence, in america that should rule and

continue to rule. like most groups that write constitutions and laws, they make it difficult to amend the constitution, and while they made it difficult, jefferson said "i am not an advocate for frequent changes, but it must go hand-in-hand with the progress of the human mind. new discoveries are made, new truths discovered and opinions change, with a change of circumstance, institutions must advance to keep pace with the times. we might as well require a man still the coat that fitted him as a boy of civilized society is to remain under ever the rules of their barbarous ancestors." they understood the rules, but they made it very difficult to change them. mr. nadler talks about the states where they could get together and have their candidates pledged to support

who won the national vote. another thing they could do is have electors be by congressional district. when you have electors by congressional districts, it would make it a little more democratic. it would make it better. they argue now that small states would be ferreted out and you would have new york and california decide everything. well i think most of these people that write this do not want new york or california to have any say whatsoever. but they are americans, even if they live on a coast and even if they live in two of our greatest states. they are still americans and their vote should count the same as somebody in south dakota, wyoming, or montana. and none of the presidential candidates go to those states. in reality, all of the campaigning is done in battleground states, which are not small states. where do they have those rallies? pennsylvania, virginia, ohio, the big ten. not the small states. i yield back the balance of my time. >> there is not much balance left. [laughter] rep. cohen: i learned that through jackson lee. [laughter]

i am pleased to recognize the distinguished gentleman from , bobby scott. >> thank you. when oneoral college way and the popular vote when the other. i think this discussion needs to be. there is a couple of anomalies. one is the faithless elector. i think we need to talk about whether or not we are going to score by winning states or straight popular vote. rep. scott: the faithless elector can be taken care of independently, but i have been a little disturbed about the fixation on a mathematical curiosity that you could win the electoral vote and lose the popular vote. of course, if it is close, there is a good chance one will go one way, and one will go the other but if you have already set the , rules that you are winning by state that ought to be what you

, are considering. you could win the world series and lose the first three games 10-0 and win the next four 1-0 and the scores now 30-4. you can still win the world series and nobody thinks there is anything curious about that because you won four games. i think, rather than being fixated on the mathematical curiosity that you could win one and lose the other, we ought to look at what would happen if you went to a straight popular vote and how that would change things and whether or not that would be good or bad. one of the things i would be pointing out that would not be a -- might not be a good thing is trying to do a national recount in a very close election. it is my understanding that during the florida recount in new york and texas, they found boxes of uncounted votes. well, you know, it was not enough to change the direction , but if that was a national recount you would have to count

, those empty offices. you could imagine a very partisan secretary certifying the election results where more votes were counted than they had registered people. exactly how are you going to consider that? election laws are not the same all over the country. but one of the things about the electoral college is it requires you to get support in a state-weighted basis in a majority of the states. weighted by population. a regional candidate does not have much of a chance. you could run up the score in one area. it does not help you because you have got to get support, you actually have to win states in a majority of the states. so what effect would a straight popular vote have on regional candidates and third-party candidates on the idea you could win on a plurality, possibly without winning any states or very few states? i think i would take issue with my friend from tennessee. you could win virginia,

pennsylvania, ohio, michigan, in and florida. win all of those states and and end up with a substantial deficit on congressional districts just because of gerrymandering. i hate to elect a president based on gerrymandered congressional districts. i hope we would not go there but generally how would campaigns be different? a friend mentioned trump could've won the public but because he would have campaigned differently if that's how the score would be. and states where he has a huge majority, he would've spent time running up the score and possibly change the election. is that a good change or a bad change? so rather than just recite the mathematical curiosity that you could win one and lose the other, i hope panelists will tell us how the campaign would be different and whether or not the difference is a good thing another. i want to thank all of our witnesses for being with us

today, especially my freshman roommate from college, professor kaser. [laughter] >> thank you. we are asking the members of the panel to reduce their introductory comments to 2-3 minutes because it keeps getting larger and larger. lofgren of california. rep. lofgren: thank you, mr. chairman and to this panel, unfortunately i'm going to have to leave in a few minutes but i think this is a very important discussion. coming from california, i am mindful that the votes of my constituents count one-third as compared to a wyoming resident and looking ahead to these

stability of our democracy. i do not think that is a sustainable model. that my constituents will be ruled by people whose votes count three times as much as theirs. that is aggravated by disparity in taxation where california, for example, pays more than it gets in services from the federal government whereas some of the smaller states whose votes count three times as much as my constituents actually are net recipients of federal tax dollars. this is barely sustainable today, but if you look 50 years in advance where the bigger states are getting bigger into -- and the little states are losing population, i do not think we can sustain our american democracy by having the majority ruled by the minority, so the question is how to fix this since the constitution is written in such a way that it is impossible to amend. there are two things i hope the panel will address and i will get a full report.

octor'sthe d interstate compact idea and whether the compact can avoid interference by the house of representatives in the senate and the second is the issue of a , constitutional convention. we are three states away from calling for a constitutional convention. it is something i have always been opposed to. you cannot limit the subject matter to a single subject, the balanced budget amendment, but i will say because of, for the second time in 16 years, the people, the americans, the voters elected did not become president. rational people, not the french, inge are now talking about , whether states could be separated from the u.s., whether we should have a u.s. constitutional convention, and i

think as time goes on that has become more the case unless we can figure out an answer from presenting the majority from being ruled by the minority. thank you, mr. chairman. >> thank you. i would like now to recognize the gentleman from rhode island, mr. david cicilline. >> thank you, mr. chairman. i particularly want to welcome our very distinguished witnesses who have studied and written extensively on the subject of the electoral college and welcome you and thank you for being part of this discussion and welcome our newest colleague, jamie raskin, who i know has done extensive thinking and writing on this. rep. cicilline: i am proud to spent a lotland has of time on the national vote

compact to ensure that participant states pledge there is electoral votes to the candidates to win the national popular vote as congressman lofgren just reference. i am proud to be from a state that recognizes the importance of this. what i think a struggling for so many americans is we recognize this basic fundamental for the pull of democracy and that is the right of citizens to elect their own leaders and of course implicit within that is an understanding that every vote must be counted, that no one's vote will count more than another person's vote. these are basic principles of democracy and of course the electoral college distorts that in so many ways. and so, i think one of the things i find particularly challenging is it is very hard to explain this to young people who do not quite understand why it is that all the stuff they learned about one person, one vote, and everyone's vote counting equally, but that is not actually the way we elect our president and then we have examples in our lifetime of people who have won the popular vote the choice of the majority , of americans has not become president. this is challenging to explain.

i think it becomes even more difficult when we think about our work internationally. rep. cicilline: we do a lot of of work to promote democracy and governance and be an example to the world in a variety of different ways and it is hard to , explain that we in our own country do not have a system where we allow people's votes to be counted equally in electing our own president. i think this has serious concerns in the long-term legitimacy of our own democracy if we do not elect our own president by one person, one vote, but i think it also impacts the good work we attempt to do around the world. thank you again, mr. chairman for this opportunity to discuss , and i want to welcome the panelists and thank you for the work you are doing. i yield back. >> thank you. i now turn to the gentleman from georgia, mr. hank johnson. rep. johnson: i want to thank all the panelists for being here today. particularly, professor raskin, who will join a shortly.

-- s shortly. this is an important hearing, the first one that has occurred since 1997, so it has been about 20 years since congress has addressed this issue with a hearing. since that time, we have had two instances where candidates for president have been elected based on the electoral vote after having failed to garner the majority of the popular vote. prior to that, it was over 176 year period between 1824 and the year 2000 that produced three such anomalies, and so it appears that time, the process of time, technological advancement, all of these things are playing into the acceleration of this phenomenon where the people go to the

polls, vote, and then the ir popular vote does not translate into victory for the candidate that they voted for. this is anti-democratic. it is hurting our democracy. people expect more. people expect direct representation. that is a fundamental principle that people expect. not a whole lot of people pay a whole lot of attention to the electoral college system, particularly since back in 1913, the constitution was amended so that we could have direct elections of united states senators. if we had not passed that amendment, people would -- this would be unacceptable. as it is unacceptable as more people come to the notion or come to the conclusion that their popular vote did not produce the winner in the

presidential election, so it is time for us to get to work to change the system so that the people's will is achieved and that is for them to be able to depend upon their popular vote to win an election, and so i am looking forward to the comments of the panelists, and with that, i will yield back. >> thank you, mr. johnson. incidentally, everyone on this panel is a member of the judiciary committee with the exception of mr. gene green of texas. bobby scott is an ex-member.

[laughter] rep. conyers: yes, he is hereby virtue of his emeritus is the word i am taking of right now. thank you so much. i am now going to turn to the gentlelady from california, ms. judy chu. rep. chu: i want to thank ranking member conyers for holding this important meeting. in my home state of california, the popular vote to medically went for secretary clinton. while some ballots are still being counted, leaving opportunity for the gap to white even further, clinton received nearly 8.7 million votes to donald trump's 4.4 million, so the difference comes out to 4.2 million votes and hillary clinton's favor. what does that say to the electoral process and the legitimacy of the results when one of the world's largest centers of economic activity and innovation and one of the

nation's most populous and diverse states, california, loses by almost the same amount of those received by the winning candidate. obviously, something has to be done about this. i look forward to hearing from the panelists on what can be done to change it. what is reasonable. a constitutional amendment or a national interstate compact. we need change. and i look forward to hearing from all of the panelists on your thoughts regarding the subject. rep. conyers: thank you very much. we now turn to the gentleman from texas, mr. gene green. rep. green: thank you for allowing me to speak even though i am not an emeritus of the committee, but i do hold a law license. [laughter] rep. green: thank you for having

this hearing. my name is gene green, i represent a very urban district in houston texas. , my colleague congressman lee neighbors in houston. i represent a district which is about 76% predominately hispanic and in our community mexican-american, north, east, and south side houston. our common complaint at home is that when we talk about people voting, your vote counts. well, it does not count in our district for president. hillary clinton carried our district over 70% and yet, no matter how many more people we'd turned out would not make a difference in the electoral votes from texas. and that is the frustrating business. this is not the first time i introduced this resolution. after 2000, i introduced it for a number of years and i was a hoping this would not happen again but we see what has , happened. that is what was frustrating. last month, senator clinton and

senator kaine received 72% of the vote in the district, and 43% statewide, making it the closest race in texas. texasheless, 100% of electoral votes all 38 electoral , votes went to donald trump and governor pence. naturally, secretary clinton is currently leading mr. trump by 2.7 million, mr. trump is expected to receive the 306 electoral votes. i do not hold out hope there will be any change in that and that is why i think the electoral college has outlived its usefulness. we know the history of it. there were a lot of compromises, just like we do every day in congress, that may not last for 100 years, much less 200 plus. nowadays i think we ought to be , able to have people's votes counted whether in urban houston, urban new york, or even central valley, california, that may be predominately republican. in that is why think the abolishment of the electoral college is we can trust people

to vote for members of the house, by majority, we changed it instead of our state legislators selecting our u.s. senators. we changed it so it would be majority vote in 1913. i think we can trust the people of electing the majority who would vote for electing the president the united states and mr. chairman, i will submit my full statement into the record but i just appreciate your time , today. rep. conyers: mm-hmm. thank you, sir. now we have the distinguished gentlelady from texas, ms. sheila jackson lee. please to recognize her. rep. lee: chairman i thank you , for your courage for holding this hearing and for those of you who are present as well as i would like to mention the congressional progressive caucus because we are joined together. as my colleague from texas said, voices can be extinguished and

our silence for the electoral college structure which i join a number of voices in asking for its abolishment. let me also say i will be calling for an official hearings both in the house and senate. i hope there will be sufficient courage to go ahead and address what i think is an indictment on a democratic system in which the world looks to the united states in its integrity. i would offer two examples. elections have consequences. one of which of course is the most famous, rutherford b. hayes, and samuel tilden 1988. , samuel tilden at polling rutherford b. hayes and of course we know that was the compromise of which fell on the backs of freed slaves who were at that time going through the reconstruction period, and what happened was the south rose again and the oppression of african-american freed men and

women was turned upside down. we lived a life of horror into the early 1900s because of that compromise. elections have consequences. in addition, as we see today in an election where a headline now reads, if i might indicate that headline, "hillary clinton's margin is about to surpass all of the trump votes and 12 states combined." but the real idea is, it if you would, are the consequences. we now see a seeking of a waiver of a standing rule about the utilization of the military and civilian leadership being shoved onto the floor of the house. we see the threat of the repeal of the affordable care act. we see the potential for cuts in medicare and medicaid. so i hope in your discussion you will think of these things as i close. to explore the history,

purpose -- can there be order, please? explore the history, purpose and continued utility of the electoral college. and to address the question of whether this comports with a in oure of law constitutional framework for equality for all in the bill of rights, and i would equally want to hear from the witnesses if i could to reflect on the national popular vote interstate compact versus a constitutional process. i'm excited about the compact. i think it is a winnable one but we want to do it in a way that embraces americans regardless of their party of affiliation. -- their party officiall affiliation. the shoe is on one foot in 2016 it can always be on another foot , at another time. let me also thank congressman raskin and thank you for your

leadership. with that, i yield back. rep. conyers: thank you for your brevity. i appreciate it. we also want to acknowledge and welcome jan of the the illinois and the one and only glenmore -- glenn more of wisconsin. are both with us. we're going to move to our many witnesses who have been very patient. we're asking you to limit your own remarks to three minutes and we're going to begin with professor jamie raskin, a constitutional law professor in one who seeks to join the house judiciary committee as soon as possible and we welcome you here, professor raskin. turn on your microphone.

professor raskin: you spilled my secret to the whole world big as it would be a great honor to join you. hello to the distinguished members of the judiciary committee. i see three basic problems with the way presidential elections are conducted to date. the first is the campaigns themselves are not democratic. as congressman cohen was saying. the second is that the institutions are not republican and the third is that the results are not majoritarian or even plurality area and if we can call a new word. the national popular vote agreement a rise not surprisingly from a movement of the people in the states.

the campaigns are not democratic and character. think about what democracy means from the standpoint of your district. one person, one vote. all of this and the person gets the most wins. that is how we let governors, u.s. senators, council members, mayors, everybody except for the president of the united states. and, someone said well if we do it the way we elect governors and senators than some people are not going to get any attention in the process. can you imagine running for governor in your statement saying i am only going to go to 203 of the eight congressional districts of my stay? i'm not going to campaign and the others. that does not make sense. our presidential campaigns are different. consider 2016, there were never more than a dozen states in play meaning the people living in 38 states, the vast majority of us, never saw any competitive campaigning in our state. we belong to the ignored and forgotten backdrop of americans whose political interests and desires are taken for granted in campaigns. people living in three of the country's four largest states, are bypassed completely. no rallies, no barnstorming speeches, no tv ads, no field

offices, no campaigning except for fundraising to harvest money to export to other states. that is not only undemocratic, it is bizarre. they say then the electoral colleges must work brilliantly for the small states if not for the big ones. no. 12 of the 13 small states, those with only three or four electors, have been total flyover country. hillary clinton did not spend any time, money, or resources contesting the small states and donald trump expended zero resources competing for the both -- votes of americans living in the small blue states of rhode island, delaware, vermont, who i come of the district of columbia. of the 13 smallest states only new hampshire attracts campaign visits and budgets and filled offices and so on. all told, the dozen smallest states have about the same population as ohio and because of the two senatorial donors

-- bonus electors, they actually have to compare to 18 but while they spend tens of millions of dollars and tens of thousands of staff hours in ohio, they spend zero resources into times and any small states except for new hampshire because it happens have a rough equivalency of democrats and republicans. the candidates to go to big a small states, they go to swing states. they go to the big ones. two thirds of the general election campaign appearances and events staged by they go to the big ones. 2/3 general election campaigns and events staged by the clinton and trump tickets this year took place in six states, florida, north carolina, virginia, pennsylvania, ohio, and michigan. almost every single appearance and event by the campaigns have been in just 12 states. the vast majority of americans were left on the sidelines. effect on predictable

voter turnout. the reason people go to vote -- i wanted to respond to something said congressman scott asked. this is the way that major institutional political changes happened in our country. the states do it first. we have the problem, state appointimng senators. the way we have dealt with that with the state legislatures is we will delegate -- enough of them did that that it built the momentum for constitutional amendments. when we get there, we will do it for 1 or 2 rounds, it will be clear it works, and then we can

amend the constitution. >> thank you very much. our next witness is from yale university, teaches constitutional law, clerked for breyer, now a justice, in 1984 when he was a judge. he has won awards from the american bar association and has been cited in over 30 cases before the united states supreme court. welcome, professor. >> thank you, it's an honor to be here. i think it was mentioned that

there was a hearing on the electoral college in 1997. i remember testifying at the hearing and expressing some skepticism about the electoral college and i remember scott expressing ism about my skepticisim. here we are, again. we have had two presidential elections in the meantime. i don't believe that the current electoral college has a partisan skew. one of the things to be said on behalf of reform is it's not a partisan measure. in 2001, i posted something on the internet that was a fantasy, a dream about how we could have direct election as a practical matter that was a prototype.

i share jamie's view that at best it is a way station towards a more permanent solution, which would be the federal constitutional amendment. i think technology was made to how states improvise direct election senators before the constitution was formally amended to codify that work around, and that's the way to think about the national popular vote interstate compact. i was an early proponent. that has some technical problems with it. thoseld talk about what but why should we try to move towards something like that or the idea that has been expressed i so well by so many is an idea of one person, one vote, the deep idea that everybody's idea counts equally and everyone is a swing voter, whether you are an urban voter

in houston, texas or a rural voter in the central valley of california, in a swing state, everyone is a swing voter and everyone is an equal voter. that's a great democratic ideal and it's not just an ideal true of countries around the world, it is a deeply american idea. that's how we pick every governor in america. a governor is a mini president. in 48 of the states they have 4-year terms. they have veto pins, pardon pins. they become president or a presidential candidate. the one person, one vote idea for them -- we don't have a problem with regional candidacy. we don't have a recount problem. we don't use congressional districts or legislative districts. it works for every governor, it could work in america. thank you very much.

>> thank you very much, sir. we now turn to our next, an important witness, author of six books, the professor of law, professor jack reichoff. pulitzer prize winner. >> thank you, mr. chairman. i like to make three basic points about the origins and evolution of the electoral college. first, we should not give the framers of the constitution more credit than they deserve for cobbling together the electoral college near the end of their deliberations and we do need to cut them some slack.

there was no precedent available in their political science for a national republican executive. more important, the framers adopted the electoral college not because it seemed the most attractive alternative available, but because it was a least unattractive alternative available. there were decisive objections against -- people of congress to make the primary choice. the framers assumed that the people voting a large would often scatter their votes among an array of candidates making a decisive choice impossible. if the legislator had the power of election, that would deprive the president of the wish to give the executive. unless he was restricted to a single term, which they opposed. the appeal to presidential elector is schism, the framers had already reached. the crucial questionings determining who the elect herds would be, how they would be be andthe electors would

votes could be bound, the framers essentially defaulted the entire problem to the states. as soon as contested elections began, the shortcomings of the framers expectations became evident. had there been a popular others 202-748-89221 trump-pence election in 1800,8-892 once contested elections began,

the pretense to the electorates would ask is an independent elite of disinterested citizens immediately evaporated. they always swear and ever will be creatures of their party. the political parties learn how to control electorates as individuals, they also began experimenting with the rules of their appointment. a number of states altered their rules solely from calculations of partisan advantage. the result of this process was the development of winner take all, statewide system in which it state is a political unit, even we know of florida in 2000 that this electorate is divided into nearly equal political halves. the original history, the origins and evolution of the electoral college is not something we need to admire or feel bound to obey. i joined with many other critics in the standard criticisms of our current system. it violates the fundamental rules that every vote should have the same weight wherever it is cast. they also believe the existence of the states is a demographic accident. our culture would be better served if both parties -- to turn other voters in every state. there are two additional criticisms. first, the last three presidencies of all suffered serious crises of legitimacy and there's no question that the presidency of donald trump share the same fate. there are multiple explanations for these attacks on the legitimacy of presidential authority, but the recurring spectre contributes to a persuasive sense of national

division. second, any attempt to confront the inequities of the system has to be able to think critically about his relationship to the federal system. there's no question the presidential election does reflect the existence of the states as autonomous political communities. reflecting that status is not the same thing as protecting it. many insist the existence of the federal system is somehow dependent on its retention. our schema presidential election adds nothing to these mechanisms, and advocate for popular election to me that case. this is something i would love to hear the committee explained to me. i do not understand how the national popular vote based on a

state-based initiative can possibly escape the compacts laws of article 1, section 10. once you are there, you will be back to article 5 amendment. if you want to yield this issue, there's no choice but to go into the article 5 route and come up with a strategy for doing that. thank you very much. >> you're very welcome. our next witness is a professor whose book was cited by both the american historical association and the historical society, and was a finalist for the pulitzer prize award, and we are fortunate to welcome you to this committee for this discussion.

>> thank you, mr. chairman. it is certainly a pleasure and honor to be here, and i take the liberty of calling the attention of the members to a forthcoming book i have with the apt title, why do we still have the electoral college. i want to use my 2 minutes to say something you little differently than my colleagues have said. not to repeat. much endorse the case that many of the members have made about the need to abolish the electoral college and replace it with the national popular vote in one way or another. the case it makes for a soundly. i would add one small piece of arithmetic. lest we think there are very rare incidents when the gap between popular and electoral votes can happen, on 17 other occasions in addition to the 5, 17 occasions when 75,000 votes or fewer turning would have produced the same outcome of the

loser of the popular vote winning the election. it's not such a rare event. that said, let me make a few other points on separate issues. it is very difficult to amend the constitution, and electoral college has been extremely unpopular. i think it's now close to 1000 amendment resolutions have been introduced into congress. on seven occasions, such a resolution was approved by one branch of congress. on two occasions, 1821 and 1970, it was approved by one branch of congress and lost by only a whisker in the other branch. it is not an insurmountable task. the reasons why this is never quite happened is many and complicated, but let me mention

two. on numerous occasions, the perceived partisan interests of members of congress and elsewhere have triumphed over not only the public interest, but over their own previously articulated views. and, notably, on a number of these occasions, and i can go into this, it turns out their perceived partisan interests were mistaken or very short-lived. they got it wrong, and it was proved wrong in a short period of time. it's not simply the case that the electoral college was conceived in the world of slavery and buttressed slavery but that the politics of race and sectional conflict have been instrumental to preserving the electoral college over our history. one more point and then a comment about the national

popular vote interstate compact. it is frequently invoked by opponents of reform that the obstacle is the small states, the small states will never go along with change. there is precious little evidence to support that view. there is statistical evidence not supported, two of the leading advocates of national popular vote in the mid-20th century were john pastori of rhode island and william langer of the very small state of north dakota. on the national popular vote interstate compact, i agree with my colleagues here intending to see it as a way station. one of my concerns is an interstate compact such as the one drawn up is inherently unstable, because states can withdraw from it. as written, they cannot withdraw within 6 months before an

election but they can withdraw from it, which could lead to precisely the kind of instability and gamesmanship which bedeviled the operation of the electoral college and the allocation of electors between the 1790's and early 1830's, when states gamed the system depending on their partisan interests. >> thank you very much. our next witness is representative bob thorpe of the arizona house. we welcome him here. he was one of the first witnesses to come this afternoon, and he has received numerous awards, and has authored a book called, "reclaiming liberty."

>> thank you. i am state representative bob thorpe and i serve as the chairman of the house committee on education and higher education and government and i am honored to address the committee and lend a state perspective to this discussion. in 2016, as one of one hundred 54 republican legislatures to sponsor the popular vote interstate compact, this bill helped solve problems with the way the candidate's campaign for president and how they govern after being elected. it is consistent with the principles of federalism and to preserve the states' authority to order electors. federal action to change or eliminate the electoral system is inappropriate and most likely impossible to achieve, as it would require 2/3 of congress or the states to propose an amendment to the u.s. constitution and 3/4 of the states to ratify it. article 2, section 1 grants a state legislature the authority

to address shortcomings within the current electoral system. far too many american voters are left on the sidelines when we elect the president of the united states. it is atrocious that 94% of the presidential campaign of 2016 occurred in just 12 of our states, while 38 states were largely taken for granted. typically, battleground states have much greater political influence than flyover states like arizona. it distorts federal policy, which can cause problems during the campaign and when governing. mr. trump won a clear victory under the system's current rules. he did so in part by making the same kind of promises every candidate makes. he promised to keep his hands off social security and medicare for the battleground states and voters in florida. he offered protection policies. these promises helped him to win, but they were narrowly crafted to meet the needs of specific groups in specific

aaces, not the nation as whole. arizona's 11 electoral votes cannot counter the disproportionate political influence a battleground state voters, get a voter from arizona or any other state should be valued as much by our president as a voter from florida or ohio. during the last five presidential elections, the 10 smallest states receive no campaign events during the general election. in the lead-up to the 2012 presidential campaign, ohio received 48 visits alone. ohio has the same number of people as those 10 small states combined. why should ohio get that much more attention than the small states? state driven reforms give small states an active voice in rural interests, a permanent promise during presidential elections. state-based reforms and compacts are better used for arizona's electorates then winner-take-all. the framers of the constitution provide the states with the authority to change the way the electorate is awarded.

states like massachusetts have already used this authority 13 times. it would be wrong for congress to strip away constitutionally granted authority from the states. the national popular vote compact achieves three important goals. it preserves the state power to award electors and allow the state legislatures to continue to place federalist checks on the president. it guarantees the president -- presidency to the candidate who wins the most popular vote in all 50 states and the district of columbia and addresses the real shortcomings of the current system. it makes every voter in every state equal and politically

relevant during the presidential elections straight electoral college is not broken, but the way it functions with nearly every state using winner take all rules is problematic. for future presidential elections, the states have the ability to make every vote in every state matter. thank you. mr. chairman, could i have five more seconds? >> how about four? >> if i could give a personal perspective on arizona, where we only have 17% of our land in private ownership, compared to the eastern states, arizona only has 17% of their land. what does that mean? greatly reduced property tax, but also representation in this body and representation when it comes to electoral votes. in comparison to the eastern states, the western states have a huge problem being equally treated when it comes to presidential elections, and it comes to just educating our kids. thank you, mr. chairman. >> your point is well taken, but i notice you exceeded the time allotted by at least 3 seconds. thank you very much, sir. i now turn to a representative,

a state representative, who worked formerly for congressman bernie sanders, served four terms in the vermont legislature, and sits on the board of national popular vote incorporated. welcome to our panel. >> thank you, mr. chair and members. i'm proud to tell you that i'm about to take a seat in the vermont state senate. >> congratulations. >> thank you. i have been involved in the national popular vote for a long time, including participating in the legal drafting of the original compact as it stands, and much of the research that went into every vote equal, a book that explains the state-based path to a national popular vote. it is my interest in change which has left me supporting the

electoral college. but deeply critical of the winner take all rule, which is the state law that produces the red-blue map we are so familiar with. as you know -- the constitution does give states exclusive power. my written testimony covers a lot of ground but i will try to use my time to cover points that have not been made and try to answer some of the questions that members have brought up. one point, in addition to all of the aberrations in a presidential election would favor so few states in such a small portion of our country, we have not covered governance. sitting in the white house,

presidents who are interested in reelection or getting their own party successor into office do place and a norm's preference on the battleground states. that is important, if you look at disaster declaration, battleground states get more disaster declaration. they get them faster and they get more money when they get them. they get more no child left behind waivers. battleground states get more visits from members of a presidential cabinet. perversion goes well beyond just election data. i think coming from vermont, others here have mentioned the small state myth that small states benefit in the electoral college as it works today. but i dold echo that want to talk about this idea that under a popular vote for president we would see new york, chicago, and a lay or the big urban centers control the election. that is mythology. 1/6 of our country lives in urban centers. 1/6 of our country lives in rural parts of the country. 2/3 of the country are suburban and exurban. we can look at how presidential campaigns happen today in battleground states, states where every vote is equal and

the person with the most votes wins. let's look at ohio in 2012, it received a great bulk, almost 30% of the campaign happened in ohio. the four biggest cities account for 54% of ohio's. the 7 metro areas which account for about 23% of the state enjoyed 23% of the campaign. the 53 rural counties account for 25% of the population and got 25% of the campaign events. we can see the campaigns will reflect the structure of where the population lives. nobody will be left out when it is about margins everywhere.

in vermont, if you want to get involved in an election, you get in your car and tried to new hampshire. this is absurd. under a popular vote, we will not be the center of attention in rhode island or vermont, but the grassroots will have a role to play. we will talk to our neighbors and stimulate the discussion and try to eat out another 1000 votes for our preferred candidate to make up for the margins in states where he or she is behind. it has been mentioned that we should consider a congressional district system. firstly, we would trade 12 battleground states for some 20 battleground districts. if you could magically have it everywhere. second, there is no reason why a necessarilyuld spread. the more states that came on

board with the district system, would in fact advantage the remaining winner take all states. this is a self halting reform. faithless electors were mentioned. they always rear their heads, they never change the outcome of an election. if we were really worried about that, states have power to remove fateful selectors from the process. we talk about recounts. we are seeing it right now. you cannot effectively have a recount under our current system. this is an area where congress does have power, because you have authority over the count and there are proposals that have come forward that would improve that. we should not pretend under a popular vote, a recount would be impossible. let me just say, the compact clause. the national popular vote is an interstate compact and it has a precondition before it takes an effect of passing states. there is a very active debate about whether or not our compact requires approval in congress. in fact, case law, the most recent being u.s. steel in 1978, is consistent that case loss adjusts and less interstate compact infringes on federal authority, there would be no need for congressional approval.

we believe the interstate compact national property vote is only taking advantage of state power. ae supreme court called this plenary power bind of the states. we do not believe that as it stands it needs congressional approval. if the court rules that it does require congressional approval, we would be coming to congress seeking approval at a time when states representing 270 electors and therefore the majority of the country and majority of congress have an activist will. we look for to working with you to get approval. i will leave it there and thank the members for their time. >> thank you very much sir. our last person is a specialist with the congressional research service.

he will not give an opening statement, but is available as a resource to answer any members questions that may arise. with that, we want to begin some brief questioning by the members of the panel. it is my pleasure to recognize first representative bobby scott of virginia. >> thank you. as i said in my opening comments, most of the comments are based on the mathematical curiosity that in a close election, the electoral college and the popular vote may not agree. if you're counting electoral votes -- and that is what you count -- just like in the world series you can get outscored but still win. we heard a lot about swing states. one thing about a swing state is it assumes you have in the bag enough to get close to 270. you will spend your time on the last couple of states, just like

if a president is trying to get a bill passed. when you get close to 218 in the house, a handful of members get all the attention. 51 senators, you get up to 46 or 47, those last few senators will get all the attention. that assumes that you have in the bag enough to get you close. again, in the electoral college, you have to be able to carry states that amounts to 270 electoral votes, half of the country. if you do not have that, then swing states do not have any meaning at all. the question that i am asked is how things would change? if you can get credit for running up the score and a state you already have in the bag rather than trying to get from state,o 51% in a swing is that a good change or a bad change? what kind of candidates would be elected? the thought of a national recount is absurd. you're not going to be able to do it. you will have state secretaries

of state that you do not trust any further that you can throw them coming up with numbers that are just not credible to their face. what are you going to do in that situation? different states have different election laws. the states of the same size casting vastly different votes. campaigning strategy -- how would the campaigning strategy differ on the popular vote, and is that change good or bad? what kind of candidates would get elected? if you have a candidate that is strong in just one region running against two or three people strong in their region, you do not have that now, because you afar -- because if you are a regional candidate you do not have a shot at 270. would that be a good change or a bad change and what kind of candidates would be elected?

would that be better for the country or worse? that is the focus i would like to see. not just the mathematical curiosity that you can win one and lose the other. rep. conyers: would you like one of our witnesses to respond? >> i think we'll get answers hopefully. to --onyers: i turned out turn now to the distinguished gentlelady from texas, sheila jackson lee. >> i come away from this hearing with the conclusion that it is going to be a tough fight, but it is a worthwhile fight, and i believe it has to be done. i still go back to the historical fixture that the electoral college is. the underlying premise is a lack of trust of the american population at that time and their capacity to elect the leader of the nation, albeit smaller at the time. one thing i wasn't sure what

you're saying, and i do want to correct if you have an interpretation that i said the borne outcollege was of slavery. i think you misheard me. what i said was that elections have consequences. one of the consequences was the unfortunate compromise between hayes and tilden. tilden getting the popular vote. by the compromise of hayes getting to be the leader of the free world, the south received a bonus of removing the union soldiers and the firewall that protected the southern opportunities for freed slaves

who were then governors and senators and congresspeople. my analysis was that elections have consequences. the consequences of the individual who will a send it to major cuts inl be medicare and medicaid, a system that will break the backs of most working americans, the illumination of the affordable care act, seemingly ignoring conflict of interest. also looking to undermine laws that have a separation of military and civilians. i want to make sure i clarified that i did not associate the electoral college with slavery. what i do want to ask, and i would like the two of you -- i think was the professor he made the point about the fractures of the national popular vote interstate compact. i think a number of you did and

i want to thank the gentleman of aerosonic who gives me hope. because it is not a partisan issue. i think that is the point we should make very clear. it seems that way now, but it is not a partisan issue. if we ultimately get will be my desire 5, 10, 50 years from now, if the popular vote rules, maybe our only challenges will be was it counted? and we have to accept what happens. i would be interested more importantly the value of a 50 state campaign in some way, shape, form, or fashion. campaigns will always try to get around doing work. i think you have a greater chance if you rely on the popular vote for candidates to say i am going to try to get the vote everywhere i can get the vote and speak to national issues. the constitutional premise that the only way to do it is the amendment, if you have some constitutional work on the fractures of the potential impact, i would be interested.

the last point is i want to acknowledge a partner, a young man who is now having a press conference on one nation, one vote. i think we should think about young people. he has taken his frustration, putting it into a nonprofit which he thinks will draw young people from around the nation to talk about one person, one vote. we have to think about the political aspect, how you are literally dousing the hopes and dreams of a younger generation that are literal.

you vote, your vote counts, you help elect a president or not. that is going to be the larger population of voters. what are we telling them after this election that despite whether numbers were up or down, those who voted heavily weighted to their vote. as new voters come into this voting process, i really think we're going to have to have an answer if you're going to continue to encourage them to be part of the participatory democracy. i welcome more thoughts on this points. >> thank you so much. i now turn to the distinguished gentleman from georgia, mr. hank johnson. >> thank you mr. chairman. i would like to know particularly from the professor the answer to this question, which is to what extent did america's history of slavery shape the development of the electoral college, and were there any other historical conditions, political concerns, or interest that motivated the framers to establish the indirect selection of the president and vice president, and do those conditions and concerns still exist? >> thank you sir. is there someone going to

respond to this? >> yes, starting with our first witness. >> i will try to actually engage all of them. these are the questions that have obsessed me for the last 20 years. there actually are answers to some of these specific questions. candidates will govern -- they will campaign differently. you change the rules, you change the game. my claim is look to the states. , we have governors of big states, diverse states that have big cities and rural areas. california, texas. and i do not think they have

actually campaigned in ways that should make is anxious about using that template nationally. now, there are recounts in states. california is a big state. scott'srepresentative concern that a national recount raises some distinct issues. let me tell you that in 2000, it was clear nationally who won the popular vote. al gore won by more than 500,000 votes. yet we had to do recounts in three different states -- florida, new mexico, and new hampshire. so actually under the current -- let's take the most recent election. it is clear who one nationally. it is actually less than completely clear who won in michigan or maybe wisconsin or maybe pennsylvania. we are going to have recounts either way.

in recent history, the national has been clear, the states have been unclear and we have had more recount problems. here is where i agree with representative scott completely. if you actually have a national popular vote, you are going to need a national recounts system. you cannot leave it to the secretaries of state of the different states. that is going to require congressional oversight. not to a compact, strictly speaking, requires congressional under site -- oversight under the compact laws of the constitution. the professor think it does. i am actually on the constitutional issue with them but as a practical matter, the system will not work without congressional oversight. states that are not in the compact may try to game it and also took ways. they may not participate in recounts. they may not be helpful. they may come in and out. you are going to need national oversight in order to make it

seem -- and i say it to you all with all due respect as one of two people whose brainchild actually the national popular vote interstate compact was. it merged from two ideas dean andntly of professor robert bennett and yours truly. way back when i saw the, seven when, i saw the promise of it, but there are these technical problems. the system will not work without congressional oversight, which will require national recount possibilities. that is a reason to say that is different from the governors. point taken. finally, it is not a partisan measure. i'm delighted to have republicans as well as democrats here testifying. in 2004, john kerry could easily, had he been in ohio, 60,000 votes changes hands in ohio, he wins the electoral

college while losing a national popular vote by 3 million. i don't think there is a partisan skew today. there would be a partisan skew if we want to congressional districts, everyone's to state proportionality. that would in fact skew the system to the republican party in ways that i could go into. right now, it is not particularly partisan. we have on regional candidates, we do not have them for ohio, texas, pennsylvania. we actually do have them for the electoral college. their names are strom thurmond and george wallace and evan mcmullen. we have the more for the electoral college than states. the electoral college makes a fraction of the national system. even if you cannot win nationally, you can be a spoiler and throw things into the house of representatives and change -- and be the change maker.

bigave problems with candidates being big spoilers for president and for governor. slavery, the role that slavery played is not merely the founding at philadelphia, but in particular with the amendment of the system after two elections in which a southerner, jefferson ran against the northern adams. the constitution was amended, the 12th amendment. in the shadow of a of what was obviously a slavery skew. without the actual electoral by slaves, john adams wins that election. my friend may be shaking his head, but i show you that that is what every adam supporters said, including people in this house who actually say he was

robbed 13 electoral votes because of slavery. it is complicated because you change the roles and you change the game. if the south did not have extra electoral votes, the candidates would have campaigned differently, but the biggest role that slavery place is actually in the 12th amendment. the electoral college is not the one created at philadelphia. you have the and electoral college in which there is a separate vote for the president and vice president. that is the 12th amendment system. and slavery looms large on that. there's a book on that called isgro presidents," and it well known how large a role slavery played in those early election when southerners ran against northerners. >> i wanted to note that the

chairman of the congressional black caucus, chairman g.k. butterfield, has come into the panel. we welcome him. he has been here before during this hearing. if he wanted to make any observations, we welcome him at this time. >> thank you very much mr. chairman. [inaudible] >> thank you mr. chairman and my fellow colleagues. and thank you to the families. i really came today to listen. this is a subject that i have a lot of interest in, because everywhere i go in my district, people are stopping me on the street wanting to know about this thing called the electoral college. they had never heard of it before, some of them say. i don't know where they were during bush v gore. people honestly, truly do not understand the electoral college. we have to have a very robust

now in this country about whether or not it is wise to continue with the electoral college system, or whether we want to move and gravitate toward the popular vote. i came here to listen because i do not have an appropriate answer for people who confront you on this issue when i get home. so, i look forward to hearing as much as i can today. thank you very much. >> thank you sir. let's continue with the rest of the panel. >> thank you mr. chairman. a number of questions have been raised by representative scott. i will try to deal with them fairly assisting late. -- i will try to deal with them succinctly. being a historian, i don't believe in predicting anything. that is one of the trademarks of

our discipline. you have to be prepared to be surprised on any given day as was the case on november 8 and november 9 and so on. if i wanted to imagine what would be the most likely change in our system if we had a national popular vote done by article five amendment rather they and a potentially a unstable interstate compact. i assume that if the parties were competitive nationally, which i believe they will continue to be, that the parties would at that point have a strong incentive to turn out their votes wherever their votes were. they would not just be hanging out in new york, los angeles, the bay area, chicago and so on. parties would have to come up with a variety of strategies. that will become more easy in the future than it has been in the past. because social media can give you many more ways to reach voters. i think that would be in the public good. i think we have a democracy in maximizing public interest in the election. not having this feeling that my vote is being wasted. if i'm the minority and a red state or blue state or whatever. point number two, i think i

agree that instead of how would you recount individual states, if you have a national popular vote, there would be only one constituency. let's call it the united states of america, to come up with a convenient phrase. under the times, place, and manners of the constitution, congress has the authority to intervene to determine how elections were to be conducted. instead of having a chaotic voting system -- the butterfly ballot in west palm beach would be the classic example -- the national government already possesses the constitutional authority to determine what are the best methods of collecting votes. you want to have a paper trail and so on. instead of this chaotic systems where states to everything, you would have a racist for -- a basis for nationalizing the way in which americans vote. based on the we have seen in these elections, i think that would be a positive development. also the chair of the bush 2000 campaign committee deemed a responsible person to decide what to do about the florida

recount. that is nuts. maybe we need a civil-service basis for this. i think that would be a net public good. two congressmen johnson's point about the history of slavery. we are old friends. we have spoken about it. kil is right in one sense that the 3/5 clause is an important factor in the original construction of the electoral college. i don't think it took place primarily for the writing of the constitution. i don't think it took place to advance slavery. set ofpat o f a

which they had made previously. the tricky part of this is once you realize that the electoral college is there for partisan manipulation, and then on a state-by-state basis you can write and rewrite the rules for maximum partisan advantage, what takes place between 1796 and 1800 and intending some after that is that there is a whole set of rule changes. if you take the 1800 election as your great test point, you have to take into account all the other rule changes going on. this system was not static. there was no one model. the reason i'm skeptical of the professor's conclusion is if you look at the congressional result and you compare the disparity between what the state legislatures were doing in terms of running electoral rolls, what , thened in district republican victory in 1800 was so dramatic, they basically reversed a lopsided margin in the house of representatives. if you go on the index, as the

best marker of what popular sentiment was at a time when there were wide procedures for slaveryn, then the factor is not determinative in the way that the professor suggests. >> let me try to respond to several different issues. even if this leads me to disagree with my old roommate. first, i would like to note for this group a remarkable anniversary. we are exactly 200 years. it was in 1816 that a proposal for a national popular vote was first introduced in congress. exactly 200 years ago. it was dismissed from consideration, in part because of what it would do to the slave

states. turning to more recent matters, i would agree in response to congressman scott's comment that campaigns would change. i think they would change in ways that are not foreseeable. i think you would see in tens of action in a lot of places. i also think it is conceivable to think that if you had a national election, we would have national election rules of one sort or another. i realize that would be controversial. but i think you did a national uniformity of election rules. i do not regard that as necessarily a bad thing. it seems that in every country in the world, if you have the same rule of governing elections in all parts of the country. i'm sure why we would be ill suited to do that. - i also think it is a case that we might end up not with more

regionally-based third parties which i think are actually at advantage of the electoral college, but we might end up with more ideologically-based third parties around the nation. that may be something to consider. finally, a response to congressman johnson's question about what were the other considerations going on in the minds of the framers in addition to slavery, let me just say a few things in response. one is that there was this concern for the national election, that it would be not logistically feasible and it would be hard to get candidates known. that is certainly not an objection which obtains today. back then, they didn't even have youtube. there are all sorts of things we

can do today. at the other notable thing and this is my reading of the national constitution, others might've read it differently but in all of the discussions that take place among the framers as they're going back-and-forth to try to figure out how to choose a president and they don't now and keep changing their mind, there is never a concept that the people have a right to vote. it is never invoked. it is never mentioned. so, we are talking about a very different political era. >> it is good that original intent is not something that we have relied upon around here. >> textually, it is important to note that the words right to vote now appear five times in the constitution. in the 14th amendment, and the 15th amendment, 19 amendment, 24th amendment and 26 amendment. it is precisely because of the legacy of slavery and racism

and all sorts of stuff that the founders could not and knowledge that. they did not have anything in their original constitution that persons are equal, only that states are equal in the senate. you won't find them in the original constitution. i promise you today when you look at your constitution, and here i get to pull out my khiser khanr of and tell you that today those words appear not once but five times, and equal of years there as well. >> may high refresh the -- may i refresh panelist's

memories on some of the points that i have made that i have not heard them respond to? that is that elections have consequences. electoral college skews those consequences to the extent that electoral college decides whether or not reconstruction survives, it decides whether or not we have a massive change in how health care is done and medicare is done. secondarily, the point made about the strength of a compact that you have made the point. whether or not it would stand constitutional muster. third is if you have a new generation of voters who are literal in their thinking, which is one vote, one person, how do you engage them in this fixture called the electoral college? i would appreciate the of -- the remaining three panelists would respond to those questions, or at least include those in your answers.

>> mr. chairman and members, in response to congresswoman lee's comments, i want to let you know also that in arizona and arizona house, we actually passed the national popular vote in the house bipartisan, 20 republicans, 20 democrats. i think it was one of your questions a little earlier. i would differ as far as stating that the electoral college itself is skewing election outcomes. i would point out that i think one fix to the problem that we currently have -- and it is a difficult fix -- when you look at states like california, republican voters are disenfranchised when it comes to electing our president. you go to texas, and democratic voters are disenfranchised there. what i would say is that one potential fix is that we do not have winner take all states. that any electors are awarded proportionally to the votes cast. for example, i think california had one third republicans whose votes did not mean anything because no electors were rewarded. i would like to remind members that the way our system of

governance is we are a republic, a representative form of government. when you think about it, our house members are elected directly. originally, our senators were elected and selected by our state legislatures until the 17th amendment was enacted. our framers of the constitution had some different thoughts in mind when it came to how different people were being selected. of course, our legislators are selecting electors to represent the will of the states when it comes to the electoral college. the congress of course, i have heard comments about just the system in general. my understanding comes from an

english tradition. founders just the willy-nilly came up with. different aspects of our constitution were borrowed from other countries. i'm not trying to be judgmental or anything, but congress, you voice some concerns about the way that the electoral college behaves and works and whether it might be disenfranchising. it has been around a long time. you think about our history as a nation. congress could have mustered up the two thirds to pass it at any time. especially after the civil war, if the electoral college and its system of selecting the president was deemed to be somehow biased. certainly after the civil war, this is something that should have been looked upon. i think we only really talk

about it when we run into a situation like we do in 2016 with our current election. thank you very much. >> mr. chairman, i have a few comments. i will start by taking a crack at congresswoman jackson lee's comment, particularly around how do we explain the system to young people? registering voters was difficult. when i would tease out why that was, there was this feeling that my vote does not matter. we run into students that live in pennsylvania or new hampshire. in a somewhat perverse way they would say i'm from pennsylvania, i must that there. and we would say absolutely.

just an oddity of our system. i think also others have asked what would a campaign, national popular vote campaign look like? we're so fixed on winning state x and y on that red and blue map. if you are talking about getting the most votes of the country, it is no longer of particular interest to win a state. it is of intense interest to run up margins in the states where you are going to win and minimize losses in the states where you cannot avail. we all watched new hampshire in 2012. they spent any $5 million in new hampshire -- they spent $35 million in new hampshire. they did spend a nickel in vermont or massachusetts or maine or connecticut or rhode island. that would change. they would presumably be some kind of spreading out of resources throughout new england. in a state like vermont, we

delivered routinely the first or second highest percentage for any state for president obama in his election and reelection. you could not go to democratic headquarters and get a lawn sign. house in new my hampshire, they were baking -- they were begging people to take it. it is amazing how extreme and liberally people are shut out at least 35 states are. running up to george w. bush's reelection, the white house and the campaign of added that they had been polling for two years in 18 states. in that era, 32 states were not even of interest to their opinions. this is how shutout we are. under popular vote, it becomes absolutely about margins everywhere. you would minimize places you have been losing. under winner take all, it doesn't matter if you lose vermont or any state by 2% or 20%. you have lost. under a popular vote, it is

about margins everywhere. democrats going to say to us in vermont, get us an extra 5000 votes because we want to make up the drumming we are getting in alabama. if people are worried about recounts, you should be worried about them today. they are far more prevalent today and are problems today. prior to this election, we have had five litigated accounts, and have called into question elections are result -- into question our elections. after all, if there is 10 of us in this room and we vote on something, we are far more likely to tie that if there are 1000 of us in a room. when you expand the franchise so that you treat every vote equal out of 130 out of 100 30 odd -- out of 130 odd million votes, the chances of a very close election go down. right now, we're carving the country up into 51 little pools as we saw in 2000. there is a big question of who

prevailed in florida in 2000. there was zero question and an election who had the most votes in the country. as we grow the pool and we love the country into one pool of voters, the chance of a recount is greatly diminished. should we need a recount in that case? congress does have the authority to create uniform rules. states themselves do have rules around recounts. it is a bigger problem, it is a bigger likelihood of having problems today. we have seen problems with recounts. the timeline is very condensed. it is a bigger irritant under a winner take all system that would be under a national popular vote. finally, folks have mentioned potential instability if you go the compact route. to some it is a great advantage, if there is some kind of unanticipated outcome not of the election itself, but of the process.

it is easier than have we amended the constitution, much easier to change state law back. i will say the idea that legislators who have made this change, who are after all creating a system that part americansr too many already think is the case, but have a hard time looking at constituents and say we have to back away from a one-vote, one-person system and go back to the old winner take all system that is part of the constitution. i think the political reality actually creates a great deal of stability through state action. some segments of my conservative colleagues very much favor keeping this power within the states. they like that it is a benefit that maybe people could decide to change the mind back out of a popular vote.

>> did you feel --? historically, if we look at the 3/5 rule, if you look back and drill down into the constitutional convention, that was initially established as part of the formula for representation in the house of representatives and for direct taxation. it is arguable that along with the great compromise, the connecticut compromise which set up the bifurcation between the senate and the house of representatives, that without the 3/5 compromise, the south might not have gone long. -- might not have gone a long. they may have withdrawn from the convention. if the electoral college was tainted by association with this initial 3/5 compromise, it was more by extension. as one of the other panelists pointed out accurately, late in the convention, the electoral college was the best they could

get and it was something everyone could agree on. secondly, with respect to representative jackson lee, the hayes tilden event was arguably one of the great tragedies in american history. if you look at the progress of participation in self-governance by african-americans in the south after the civil war, there would certainly seem to have been something the extra but in life. they worked with the african-american officeholders. the hayes tilden compromise with drew federal troops who upheld civil rights, and also gave a blank check to jim crow another 70 or 80 years. i think your point is well taken. i thought one of the more interesting points made here today was the possibility that

the national popular vote initiative could be a halfway house, which may ultimately lead to direct popular election through constitutional amendment, which the panelists suggested was probably the best goal. another interesting point is that i watched over the years with respect to proposed amendments that deal with the electoral college, there has been an increasing interest among members -- or there was an increasing interest -- that would enhance the authority of the united states government through its authority over the times, places and manner of holding elections. some of the other panelists mentioned this as well. it is something the states might complain about, but on the other hand, if it were to be a greater

federal role in the way our elections are administered, conducted, and perhaps financed, states might arguably not be so unhappy with that. finally -- and you would really need if you're going to have a national recount, some manner of doing it on a uniform basis across the country. there are 50 different statutes on books in the states right now and it is difficult to do that. with respect to constitutional amendment for direct popular election, constitutional amendments as we said earlier are difficult to get through. my experience from studying the amendment process is that either amendments are the result of a long building up of public support until it becomes obvious that there are national majorities in favor of it, or it

can be the result of a catalyzing event such as with respect to the 25th amendment and the assassination of president kennedy. both of these factors are helpful. the third factor is the attention and support all members of congress and the leadership in congress. many years i used to say that if we ever had a so-called misfire, that they would probably be action in congress to push forward a constitutional amend. we had one in 2000. congress did respond. it was through the help america vote act, which i don't think i heard mentioned here today. that was used for legislation to provide improved and enhanced federal standards and grant aid to the states to improve their election administration procedures, and particularly their hardware. there has been work on this in congress.

it is a possibility, i cannot speculate, that this catalyzing event here that we have seen may lead to further developments. >> mr. scott? >> on this recount, one of the things about the state recount, if you have a recount you expect both sides to be well represented. if you have a national recount in each state, you may not have both sides well represented, and you may have different election laws, same-day registration and that thing. if you're running up the vote, election laws can be extremely helpful. that is why one of the things you have suggested is there would have to be national standards, which would eliminate the voter suppression laws that some states can enact. we hope that we would get that

straight before we go to a popular vote so we would not have some states doing their own recounts, changing their election laws to allow same-day registration, no counting know, certified results -- no counting, no certified results. we are faced with having to accept that or, i don't know what you would do. if we had the federal mechanism in place first, then i think you would have something that would make sense. a couple of other things. i have not heard any comment over whether or not running up the score in one state would produce a better president than in the close states trying to get from 49% to 51%. which would produce the better candidate, particularly if it is a swing state where you have to cover half the country to get to 270.

you can get the popular vote running up the score in your region. which is actually better? finally, one of the things that could be helpful in this is if you have a runoff. if you have a bunch of candidates getting 25%, 30%, whether or not you have a runoff. would the cut off be 50% or something lower? any comments? >> on those three questions, first, you are absolutely right that we are going to need national standards, not just for the recount, but for the count and for voting. in an electoral college world, the states actually don't have a particular incentive to make it easy to vote. you have the same number of electoral votes since 1910 where -- whether you let women vote or not. in a direct election you double your clout if you let women

vote. in a direct election world, it is true, and it is a concern as i try to address it as i thought through the ideas that became the national popular vote interstate compact. california might say hey, let's let 17-year-old vote. and texas is hey let's let 16-year-olds vote and arkansas says hey, let's let dogs vote. it is a good thing, not a bad thing to have a national law that you all would draft, implementing a national right to vote. the founders did not have that phrase in the constitution. you now have it five times. egadeep a gala terry and -- litarian idea that all those are counted equally and no voter is more valuable than any other voter whether they are in a swing state or not a swing state or urban or rural, that will not be vindicated if you count votes equally but have completed the

-- completely different rules about who can vote and how they can vote. you are going to need that upfront, whether it is required or not by the interstate compact clause. it is will make the system actually work. other countries do it. as to whether it is better to have candidates who try to rack

up votes in their bases or just appeal to swing areas, that is basically the same issue that exists in states. we can say swing counties rather than swing states. do you try and california to rack up the vote in urban areas, or do you instead try to have a different kind of appeal where you might not rack up as many votes there, but you will lose fewer votes and anti-urban areas? my claim is that we have many states that are quite diverse and our big -- are big and look like america whether we call them ohio or pennsylvania or california or texas. our governors are just fine with one person, one vote, uniform standards. the system will change if we move to that. we cannot fully predict all the changes. we can say we can look at governors. i do not think they are a bad model. no one else has the electoral college. no international counterpart. that system seems to work pretty well for those places. >> i just want to put something in the record. you have been indulgent with your time or just to get a quick yes or no. i said at the beginning, i think this has been a rewarding and instructive, and particularly

intellectually grounded in the constitution and otherwise hearing. i believe it is important now that we are on i think our fifth popular vote -- if i have the count right -- conflict, that we have official ongoing hearings on the question of presidential elections that includes the electoral college in the house and senate. can i get a quick yes or no? >> amen. >> down to the end? >> congressional research service will support congress, whatever decision. >> i forgot your limitations, but thank you for that. i have a letter asking for those hearings, thank you. >> you want to put it in the record?

>> i do. that is unanimous consent. >> there is some other comments that we want to hear from before we close down. >> mr. chairman? i would like to make a very brief comment about the interstate compact and the notion of a way station. there are two different ways of thinking of a way station. my own view is ask her to think of the interstate compact as a way of mobilizing political support for changing the system. if you got close, that could be channeled for an amendment. >> yes sir? >> i understood the comment to the effect of do we end up with a better candidate at the end? you look at this particular election cycle, something like 17 republican candidates and i think we had four democratic candidates. it is through that primary

process that a party chooses a candidate. it is a party-based process. the one thing i would voice is i consider myself a federalist and a constitutionalist. i would be concerned that right now, we have a u.s. justice department that can at times be very overreaching when it comes to stamping down the states and not necessarily treating us as sovereigns when it comes to our election laws and how we have our elections. the state of arizona has a policy that disenfranchises individuals or groups based upon any criteria, it is going to make headline news and we're going to be -- we are not going to be able to move forward with that. the last thing i would want to

see is that the federal government take away more of our sovereignty at the state level to run our business when it comes to elections. we do not need to be micromanaged. if there are grievances from individuals or groups as they feel that we are being unfair, then those need to be run out to -- those need to be brought out in the light of day. if we're making mistakes, either accidentally or on purpose, we need to correct those mistakes. >> did you want to close this down? >> i would be honored to. one final comment in regards to representative scott's concern about the differentiation between state laws under a national popular vote. this is the system today. we live with those results today. i would argue they have very deep impact today. in fact, outsized influence today than they would under national popular vote. surely we would agree florida's

use of the chad ballot had themous implications that rest of the country had to live with. sunday voting and ohio or lack thereof has a major influence on our elections. voter id laws in wisconsin is going to ripple through the future of our country. when we routinely have a system that comes down to 5-12 battleground states and we live under the variation of those state's laws, we are going to already see an outsized influence over the variation of state law. when you lump everyone together, i would argue that it minimizes the impact of that variation. >> mr. scott? >> we have had comments that the electoral college does not exist anywhere else. it actually exists in the city of richmond, virginia, where you are elected mayor by carrying five of nine wards.

>> on that note, i want to thank the panelists for an excellent discussion. there were seven of you initially. this has worked out well. i also congratulate not only my colleagues, but my colleagues who were able to stay with us throughout the entire discussion. ms. lee and mr. scott, i thank you very much for being here today for your contributions. with that, i declare this hearing adjourned. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2016]

>> c-span's washington journal live every date with news that impacts you. coming up this morning, just off of a successful bid, congressman tim ryan of ohio will discuss the future of the house them in credit leadership -- house democratic leadership. also larry bouchard, member of the energy -- talks about how

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resources measure that is for flint, michigan's tainted water system. you can stream live on c-span.org, or listen live on the free c-span radio app. >> a new president and congress will be sworn in in january. it discussion about the freedom of speech and politics. this 90 minute event is hosted by the institute. -- the cato institute.

>> hello. good evening everyone. thanks for coming out to the cato institute in washington, d.c. my name is cat. i'm cato's digital outreach manager. you are at cato digital. an ongoing series on the intersection of tech, social media and the ideas of liberty. tonight we're going to be talking about ongoing attacks on freedom of speech and the freedom of press and what we can do to combat those attacks. our hashtag for tonight is as always #catodigital in the spirit of free exchange, i encourage you all to use it liberally on twitter and instagram to share your thoughts, reflections, favorite quotes from the panel tonight.

those of you who are watching on c-span or one of our online channels can also use it to tweet in questions which i will be look for on my phone throughout the panel. the freedom of speech and the freedom of press are at the core of a free society. unfortunately, we're increasingly discovering that far too many people might say that they support them but when in actuality they don't support the policies that safeguard any of the above. on the campaign trail we saw both from hillary clinton and donald trump calls to close sections of the internet in order to combat isis and support for flag -- for bans on flag burning, a constitutionally protected right. last week even, donald trump doubled down on his -- on his dislike of flag burners with an incendiary tweet calling for all americans who would burn the flag to lose their citizenships. he's also called for tougher libel laws that would crack down on media companies that publish embarrassing or unflattering information about individuals and has said that the freedom of the press gets in the way of the war on terror. meanwhile on the campaign trail, we saw students calling the police to report hate speech because of seeing trump 2016 written in chalk on their campuses.

we saw employees of facebook petitioning mark zuckerberg to ban donald trump and the campaign trail alleged that twitter had blocked much of its advertising on the platform because of ideological reasons. post 2016 election, pundits on both the left and the right blame social media for the increasing polarization of the voting public and both google and facebook have announced initiatives to crack down on fake news on their websites despite controversy over what that fake news actually is. our guests tonight are two stall -- two stalwarts in the fight for free speech and the freedom of press. flemming rose is the 2016 winner of the milton freedman award for advancing liberty.

he is the author of the "tyranni -- cureany of silence " that is now out in paper wok. those of you in the audience will get an opportunity get a copy signed after this presentation. most of you probably know nick gillespie. editor in chief of reason.com. you find him online at twitter@nick gillespie. >> my hours are usually between 2:30 and 3:30 in the morning if you're looking for something to do. >> the best time. >> i want to get those trump tweets out there, retweet them immediately. >> flemming, your life changed on september 19th, 2005. can you tell us why? >> not right away, but september 2005, was the day that the

cartoons of the prophet muhammad were published. nothing happened on the day of the publication. i just received one phone call from a newspaper who had be at the mosque and complained and said he would not sell the newspaper anymore. you get those calls every now and then. so it took a while until i understood that this may change my life. >> right. and why did you publish those cartoons? >> well, the cartoons didn't come out as blue. they were published as part of a debate about self-censorship and violence regarding islam in denmark and europe. there were several cases pointing to the issue of self-censorship and intimidation. a dutch filmmaker was being kill

ed in amsterdam in 2004. there was this debate, is there self-censorship or not? or is it based in the imagination of those who sensor ?hemselves -- sensor themselves to find out i invited cartoonists in den mark to draw the profit as they see them. i received some from 25 active members of the association of -- >> some of those people did express they would want to publish anonymously. >> well, yes. one of the reasons why we published was that it always started with a children's book about the life of the prophet and the illustrate or who did those illustrations insisted on anonymity which is a form of censorship.

you do not want to appear under your own name out of the fear for the consequences. >> it's the case that mo hammad, a dominant train of thought that you should not figure the prophet, correct? >> he said afterwards that there is no basis in the text, in the text for the -- the particulars for banning images of the prophet. you had images of the prophet. within shia islam, -- within shia islam you had images of the profit. -- of the prophet.

but recently that's true it's been banned. but you have throughout islamic history, you have -- you see them where you in fact have a 13th century image of the prophet. so it's not true that, you know, -- it is true that depictions of living things is not quite common. if you go into a mosque if you go to a church, you will see -- >> this is a good reason to avoid both, right? keep your weekends free. >> there was a violent reaction after these cartoons came out. multiple embassies around the world were set on fire. i think over 139 people were killed in protests. >> probably more. >> right. yes. do you regret publishing the cartoons? >> no, i don't regret publishing these cartoons. i mean, they were in line with my fundamental approach to journalism. it says that if there is -- if you hear about a story, if you

hear about an issue, you want to find out if it's true or not. right? that's what you do as a journalist. we just chose an untraditionalal -- a nontraditional way. instead of just asking people, we invited people working with images as their medium to show in practice how they view this issue. but of course i don't believe that a cartoon is worth a single human life. >> yeah. >> the challenge for any editor and journalist is what do you do when there are people out there who believe that it's okay to kill because of a cartoon. >> but you yourself would put on al qaeda's hit list alongside salman rushdie, the now late editor, and your own newspaper,

despite supporting you publicly, did give you very restrictive list of rules on how you were allowed to engage. >> quite late in the game in 2011 after i published this book in denmark in 2010. it was in a situation of emergency, i would say. i mean, there were between five and ten foiled attacks or plans to attack the newspaper. so it was a very unusual situation. that's why i accepted, you know, this in 2011. but a year later when i was told this will be in effect as long as you're employed by this company, i was not allowed to speak and write about religious issues. i was not allowed to speak and write about the cartoon crisis. i was not allowed to speak and write about the organization of islamic conference or collaboration, international organization.

i said, you know, i disagree strongly and i will take the consequences if i am not able to live with this at some point. somes emblematic -- at point. >> it was emblematic of the same chilling of speech. >> it was a huge victory for the jihadists. i'm not on speaking terms with, you know, colleagues and friends whom i've known for 25 years. the top management at the newspaper, they tried to silence me. in the end i broke with them and i left the newspaper. we don't talk anymore. so i mean, friendships were ruined. fundamental journalistic principles were violated. that's a huge victory for the jihadists or the historian a few years ago.

>> nick, in 2015 you faced similar pressure to value security over liberty. >> yeah. >> tell us a little bit about that. >> let me just thank you for having me and it's a real honor and a privilege for me to be on a stage with somebody like flemming who is -- and i hope you all appreciate both what he said when he said no cartoon is worth a human life. somebody who reads editorial cartoons almost everybody day and even publishes them on a weekly basis, i agree with him completely and also the principles for which he really made a bold statement is really just fantastic. i would like to give him a round of applause for standing up for that. [applause] >> as cat was saying, as a bed rock principle of a free society of an open society, of a truly liberal society, free speech, free expression, i think free assembly as well, these are all intertwined and they are at the

core. i say that as a prep. i feel bad to be on the same stage as somebody who's in the name of a foundational civilizational value, i publish a bunch of cartoons and then insane jihadists who purport the group they represent, tried to kill me and people around the globe and caused all kinds of mayhem. my contribution to free speech is much smaller. it may be more common for more of you. essentially last year if all of you know or have heard of the silk road website which was a dark web or deep website where people could buy and sell anything they wanted basically using bitcoin. they were anonymous users. it was used to traffic in a lot of drugs. the person who is ultimately convicted of founding and running the site, russ albrecht,

he went on a long trial. he essentially got a life sentence which he's appealing now from a judge in new york. >> with no chance of parole. >> that's right. yeah. he's, you know, he's going to be locked up for the rest of his life almost certainly. he is appealing it. but when the judge handed down her sentence, katherine forest, the judge in the southern district of the federal court of new york, she spent a long time haranguing him about his libertarian believes and who did he think he was that people should be able to come and freely trade whatever they wanted in a consensual nature? what kind of bastard are you? i'm exaggerating a little bit. i wrote up a post about the outcome of the trial which i think was wrong and the judge went off on a tangent. she wasn't talking about the law. she was mad that this guy would have done this. and then in response to that a couple of our commenters, we

have an unmoderated comment section. it's increasingly rare to have any comments on websites for reasons that i think will become clear over the conversation tonight. but a couple of them made literally six people made comments that were making fun of the judge, a couple made jokes that were threats based on fargo, the movie fargo. there's a scene where a guy gets fed into a wood chipper. they made references to that. they made references when the revolution comes and they round up judges, they should put one behind another so you save bullets, things like this. a week or so after that we got a subpoena asking for all of the information that we had on our commenters which was not all that much because we don't actually -- we ask people if they want to comment they need to supply a valid e-mail address and then there's a variety of other information they mayor may -- they may or may not give.

because the federal prosecutor had standing grand jury that was related to this silk road trial , and they said that these were threats against the life of a federal judge, a very serious charge and they wanted that and we were faced with the question of whether or not we go public with that subpoena or not. do we tell the people or do we just comply with the subpoena. -- with the subpoena? and we ended up doing based on legal counsel, we let the people who were the subject of the subpoena, the six comment ers, -- the six commenters, we got in touch with them and find out if they were going to try to quash the subpoena. then we got a gag order the day after because our lawyer said to the federal prosecutor who had

gotten in touch with us, well, we told the people, you know, who were named in the subpoena about this and we're waiting to see if they're going to quash it. they said you can't do that, you're under a gag order which means you can't even say to people if they ask you are you under a gag order, you just got to be like, you know, i mean, you're not allowed to say anything. the federal prosecutor had fucke d up and then they issued a gag order. one of the commenters leaked the subpoena to ken white who is a criminal defense attorney in california. runs a great legal blog. he wrote a story about that th -- wrote a story about this and then he called me up for a comment to ask whether or not we were in fact under a gag order. i was like i really have no comment, which is effectively the same as saying yeah, we're under a gag order. >> and so that was a chilling effect on our speech. we ended up protesting. we spent thousands if not tens of thousands of dollars and of man hours dealing with this.

and that's, you know, in a way it's interesting you called it the assassins veto. it's certainly that. we had a chilling effect from the federal government essentially saying you have a right to free speech but we're going to make you work for it and pay for it. plus the chilling effect on the commenters. the happy ending in that story was because of what ken white's great coverage, and this just fantastic piece of article, look it up on the blog, we generated a huge amount of sympathy from different groups. it turns out the federal government has tens of thousands of requests. there's no way of really kind of cataloguing and calculating how many. they asked for information from places like youtube, from places like facebook, twitter, tens of thousands, other press organizations for information on readers and commenters. and often times with the gag

order, so nobody really knows how many times this is happening and how often. >> and you were in a unique position here. you were the writer of the original piece that the commenters had commented on. but you were also the editor in chief of a very libertarian publication. do you think you that could have expected another media source to respond in the same way? >> yeah, that's a good question. the way that most media sources, and this goes to it's a more subtle erosion of the ideal of free speech and free exexpression and open and unfettered exchange of ideas. what most sites have done, many publications have done, there's two responses generally. one is that they will use a service like disqus, which is a commenting plug-in for a variety of website content management systems so that the comments are actually technically published

by a wholly different organization than the site that they're on. and it gives you a certain amount of distance from that. or you just get rid of comments altogether which is more and more common where people just don't have comment section anymore. and the internet and the world wide web, which i guess is just called the web now, excuse me for being old, but in the early 1990's, one of the dreams, and it's delivered on a lot of this, not completely, was wow, we could have real conversations that it wasn't just waiting a couple of weeks for "the new york times" to public 100-word letter from somebody bitching and moaning about something. but you could have real discussions. the public square could be everywhere and always and always had more room for comments to something where things have really become shut down in many significant ways. >> so nick, you defended

essentially the freedom of speech of people who were making death threats, although there's a lot of question of how serious those. -- of how serious those were. flemming, you actually received death threats for supporting freedom of speech. what is the difference there? should the people making those death threats get freedom of speech as well? >> i think if you look at the american situation, and the first amendment, death threats in order to be illegal need to be followed by more or less immediate action. in europe it's a little bit more complicated. in europe people may be convicted for speech like this. but i'm more in favor of the american approach that there need to be a clear and present danger. >> right. >> even though you may not think it's funny for the judge. but -- >> someone making fargo jokes is a bit different than someone

who's just murdered someone for saying something. >> of course. >> you reference the murder of theo van gogh in the streets of amsterdam. one of the great citadels of tolerance, he had a knife stabbed into his body who had written the scenario for the movie that he had directed for which he was killed. that's a wildly different situation than what reason faced. there's a concept of true threat where if you just say, you know, you're blowing off steam and you're saying oh, i could kill this person or i want to kill this person. it's not a true threat because there isn't any proximity. there isn't necessarily any real follow through. one of the things that was hilarious and it was in the subpoena, and this was to a grand jury and we had no way of stopping this because grand juries are given latitude to get whatever information they want.

there's very few limits on that which itself is a problem. but somewhat separate from the speech issue. but they were saying these people are making credible threats, real threats, true threats against the federal judge and can you get back to us within 72 hours or a week with the information about them? so it's like they were so terrified that these people were -- these commenters were going to come and kill a federal judge that they gave us a week to comply to get the information. much of which was available and like in our profiles. one of people had a google plus page listed as their contact. so the federal government was so upset by this. but they didn't know where to turn. so they asked us to get us information in a week. it is just ridiculous on the face. that is a real distinction. if it's a clear and present danger, if it's a call to immediate serious action, it's one thing. but otherwise, come on, speech is speech.

>> right. so on that note, to get the elephant out of the room, is flag burning free speech? >> yeah, i think so. unless a person's wearing it, and then it's an assault. [laughter] >> so as journalists -- >> i'm sorry, i don't know if there's any trump supporters out there. the really novel thing about the trump comments on that wasn't simply a flag burning. hillary clinton is against flag burning. all of these idiots and large majority of people in congress i think are against flag burning. he actually said that you should not only go to jail but you should be stripped of our citizenship which is truly kind of stunning. that is a particularly interesting kind of meme or idea that goes through a lot of trump talk. some people are citizens. some people can't be citizens. or you could be a citizen but we're going to get rid of you. as a matter of law, there's no possibility of that happening. it's disturbing to see him constantly reach in that direction. >> so as journalists, do you

think that president trump will be a credible threat to free speech? why or why not? >> we'll have to wait and see. i mean, i'm not an expert on u.s. elections. i wrote a book while the election was going so i didn't follow it so closely. i notice the other way that floyd abrams, a great first amendment lawyer in the u.s., said to the "hollywood reporter" that donald trump represents the greatest threat to the first amendment since the alien sedition act from 1798. and he contemplated that the u.s. media organization may consider suing trump for libel to fight him, you know, with his own weapons. >> the weapon he wants to weaponize more. >> so to teach him a lesson.

i think it was more like a creative input. he just said we have to think about how to manage this situation. i mean, i think the, coming back to what you said about citizenship, that on the one hand, trump is politically incorrect, yeah? he says things that usually would be socially marginalized -- maybe that's one of the reasons why he has so much support. but at the same time, he's very thin skinned when people criticize him. and i see him as a populist. we also have these populists in europe. a key notion of populism is lack of -- that we represent the people, we are against the leads or the foreigners those who do not belong. i think that is a key challenge

in this current debate about free speech, be it donald trump. be it islamists. be it rising populists in europe. be it left wing do-gooders. it's all about the lack of the ability to manage diversity or manage or cope with ideas and speech that they dislike. and that has been reinforced by the digital revolution, by migration. every society is getting more and more diverse in terms of religion. i think that is a staying challenge independent of trump or not. and it's's big a big issue in europe and i think it will also be a big issue here and other parts of the world as we move forward. the world is not going to grow less diverse. we have more and more people living in cities. the difference between cities

and country side, you have virtual and physical neighbors that you didn't used to live next door to and it raises what i believe is the key question here, the question of tolerance. and the distorted understanding of tolerance that is being moved around. to me, tolerance is basically a judicial political frame for

managing disagreement. you don't try to ban and you don't try to use violence to silence things that you hate. to many people it means either, you know, turn the other cheek, that you are intolerant if you say something outrageous. so in order to manage this new diversity, we have to get back and reinvent the notion of tolerance. >> what is means to be tolerant. >> yeah. in a diverse society. because trump has trouble managing diversity. america has trouble -- political parties have troubles on college campuses, they're not able to manage diversity. so we have to get back to these key building bricks of the enlightenment to be able to find a way to live in peace together in this new era without compromising fundamental liberties like freedom of expression or freedom of religion and freedom of a assembly. >> freedom of movement. one of the things you touchdown -- one of the things you touched on is you're tuking about an enlightenment i deal, it needs to be redefended. the enlightenment has become a

dirty word in academic circles. the dark enlightenment. if you follow the frankfort school or other scholars, it ends in the mass order in -- the mass murder in auschwitz about factory murder. we need to defend the enlightenment and the idea of cosmopolitanism. globalism, which trump says and the people who support him, hillary was a globalist. obama is a globalist. somebody who deported more american -- not more americans, but more illegal immigrants than anybody else is a globalist somehow? but i think we need to take a stand for globalization in a positive way and make it a positive ideal and it's based on this idea of freedom of movement, freedom of speech, freedom of conscience.

this is where a dynamic economy, dynamic world, fairer world, a better world, more prosperous world comes from. it is better that we trade with china than that we fight with china or we isolate china. it is better that we trade with mexico and that the nafta agreement created a free trade zone in north america where there are effectively no tariffs anywhere. we need to go back and kind of defend that. to go to the question of trump and free speech really quickly, he has his own idea. if he could, he would shut down everybody and every news organization and every, you know, random person. and i do recommend you follow his twitter account. at one point he said he was in the green room at fox news, juan

williams, one of the liberals at fox news, took some selfies with him and he tweeted something along the lines of juan williams took selfies with me, then slammed me on tv. what a bad man. and this is a guy who is going to be the president of the united states. he's that pissy about every interaction. we need to hold him accountable and make fun of him. if he had his way, he would be terrible. >> cartoons. >> yes, let's use cartoons. have donald trump with a bomb in his hair rather than his beard. but he also as a matter of policy, for instance, donald trump, and this just shows what politicians want, remember, it's all unintended consequences. we believe we know the law of inintended consequences. it's true for politicians as l. we might want to shtut down "the new york times," but he's also going to probably appoint an fcc that will get rid of stupid new -- stupid net neutrality laws that hillary clinton was in favor of that would totally discriminate and change kind of the jurndunderlying framework and internet data.

but he might end up having a more positive effect and opening up the very framework by which we are more free to speak in more different context that we might not even be able to imagine yet. >> just one follow-up on diversity. i basically agree with you, but i think we need to acknowledge that diversity is very difficult and can be very painful. for many years it's because it's been very popular to celebrate diversity, kind of not correct to acknowledge that it is -- it's not easy. it is painful. it is difficult. it creates conflict. you have confrontations. celebrateould not diversity as a virtue by itself, it's just the fact that you have to cope with it. it's not that the more diverse a site is, the better it is, the

more homogenous it is, or the better it is. that's two different types of sizes. and we have to be honest that it's not easy. and we see that all around the world right now. >> i want to go off of this idea of diversity. we were discussing earlier before we started this discussion here, the early internet or the early social internet when people first started engaging to give people an opportunity to find so many more sub cultures and groups and ideas that they didn't really have access to previously. in those ways it had become much more diverse. it had this diversifying impact previously we didn't have that. but now, post 2016 election in particular we're having a lot of people blaming the polarization of the voting public on the fact that we have things like algorithms that service content it knows we're going to like.

do onct that people push follow anyone who says things they think are uncomfortable, unfriend them. if you say things a certain way i'm going to defriend you. i'm going to block you. then they turn around and say how could donald trump have won, no one i know supports him. what is the ploy here? are the people the problem? do the people need to be trying to -- >> i think the children are the problem. we keep looking to them as the solution, but they're really the problem. they're the ones. that's how we know the schools are no good because they're not learning anything. it's their problem. [laughter] >> i would argue -- i agree that there's no question that social media, new media or however we want to talk about it, the internet is being blamed for polarization. the fact of the matter is i am enamored of a political scientist who is now associated with the hoover institution who has talked about this going back

at least 15 or 20 years about polarization in american politics. the real problem isn't that americans aren't polarized. you can find basically 60% of americans easily think that illegal immigrants should be given a pathway to citizenship. 60% or more of americans think that abortion laws should kind of stay where they are now and have been since roe versus wade. 60% believe that pot should be legalized. i mean, there are massive majorities. nobody cares about guy marriage anymore. this used to be a hot button issue. won.ou know, it has there's massive majorities on many issues that divide us. the real problem is in politics, in part son politics, we can't express those opinions because the nominating processes by which candidates are selected are governed by extremists in both the republican and democratic party. you can see this where there are no centrist republicans anymore.

there are no centrist democrats anymore. they are all extreme. this predates the rise of the web. it's the political system that's the problem. it's also helps explain, and i'm actually bullish on this election, because again and again, and this is something matt welch, and we talked about this in our book, going back to 1970, fewer and fewer people identify as republican and democratic. fewer and fewer identify as liberal or conservatives. they are moderates or they are libertarians. david bos is in the audience. gallupa great post using survey to show that actually libertarians are the single largest kind of ideological block, socially liberal and fiscally conservative. we can pick bones with that type of stuff. but it's basically the political system we have does not allow us to express our agreement on many important issues. and we are vacating that political system. fewer people want to be republican. fewer people want to be

democratic. >> we saw that with the election. >> it's kind of a great outcome. one horrible candidate who is historically disliked one election. the other won the popular vote. neither of them could get 50%. they have a total polarization on political discourse. they suck and we know it. we're leaving that behind. we're migrating somewhere else. hopefully it's a world beyond politics. we need to keep an eye on politics and keep it small in our lives. this is progress that we have an election where nobody won clearly and nobody got 50%. and i'm hoping in 2020, especially if joe biden runs, we might be seeing major parties polling in the single digits. if somebody knows where gary johnson is hiding out, i think the third time might be the charm for him.

just like ronald reagan. >> on social media and what you said about -- >> diversity of ideas. >> and exactly. i think that is a huge challenge. toause we have this tendency look for material and stuff which we agree and that does not challenge us. so you have these echo chambers and communities that don't know what's going on in other communities. i don't think that polarization by itself is a problem. sometimes it's great to have polarization and good things come out of it. because you have a heated argument. but i think in terms of knowledge production, i think it's very beneficial to be exposed to point of views with which we should disagree or even

hate or dislike whchlt dislike. when it comes to moderation, you have the social psychology test that shows if you put people of the same opinion in the room and talk about the issue in which they agree when they come out, they would be more radicals. and the same with people of the opposite point of view. but if you put people from both groups in the same room, they will tend to, you know, to moderate their opinions. and also from knowledge production, i think it's healthy to talk to people with whom you disagree. or to figure out what you what you disagree about and you can refine your argument and not just torture people with whom you agree on everything. i think social media reinforces, unfortunately, that -- >> i'm not fully convinced that we're more polarized than ever in our daily lives or we're sorting as much as some people say, so that you know, that everybody just lives around people who are exactly like them

or think like them. but taking -- there is no question that that kind of self selection or confirmation is problematic. to go back to the enlightenment question, i love the phrase, knowledge production, it's really key. that is what universities, i think should be for. they're not for teaching students they're for knowledge and debate and synthesis. in the next step forward is, i think societies that produce a lot of knowledge do better. enlightenmentthe question. what are the institutions that we need, do you think that we need to build up so that we take that seriously and that we're teaching our children, okay, look mommy and daddy have all the answers and we have to force it down the throat of the people that don't agree with us. how do -- what are the institutions that would build up that kind of enlightenment belief, in tolerance, pluralism and conflict, and emotionally as opposed to violently.

>> i think the school. i mean, the schools, where you bring up kids and you teach them the benefit of being exposed to things that makes you uncomfortable because in stintive reaction will be i don't like this. and i mean, i have a grandson who is very am bill lant in playing soccer and i take him to soccer every saturday morning. >> is so you wanted to be a soccer star but you never were able to so you are pushing him. >> that's true. but he is ambivalent. can see even though he is ambivalent after a long period of time he starts to enjoy it

and so i think we have to teach our kids this knowledge production process and tolerance that, it's okay that you don't like what, you know, the other guy says, but it may be beneficial to you to listen and engage in a conversation and -- but the trend is that we have to protect our children. >> right. >> because there are so many bad things out there so we don't expose them to things that makes them uncomfortable. >> including in the schools. >> and this brings me back to the concept of tolerance. so you have to -- you have to teach tolerance this way, that it's good to be exposed to things that you dislike. >> on the same track of exposing people to ideas, prior to the election here in the u.s., there's big controversy that had conservatives up in arms saying

that facebook was censoring them based upon the trending news stories mechanism and how stories were being selected for that. now, after the election, we're hearing a lot about fake news and why isn't facebook doing more in order to figure -- in order to make sure that certain stories are being told and other ones aren't. is this a partisan divide we're seeing or is there something else at play here? >> well, i think in the fake news story, the one thing that clinton supporters -- not even necessarily i think hillary clinton supporters, but people who preferred her to win over donald trump, and particularly dyed-in-the-wool democratic party members they

are, i think the less they're likely to say, okay, she lost not because of voter suppression, she lost because -- you know, they don't want to blame her for the loss, because that doesn't compute to them. but she just did not bring out the people she needed to bring out to vote. people were talking about she was going to have a more diverse coalition of different interest groups than obama. she didn't. as a matter of fact, she ended up basically polling, you know, what polls expected her to, she -- you know was within a couple points of beating trump but she didn't pull people out. it was her fault that she lost. but people are searching, her partisans are searching for reasons to explain her inexplicable loss, which is kind of understandable when you look at the number of votes that were cast and the lack of enthusiasm that had dr. through the entire process to the point where bernie sanders who is a joke -- i mean, he is a joke as a candidate. he had no good ideas. i mean this is a guy who says the final days of the danish model.

>> the final season, the bonus season of "that 70s show," this is a guy who hasn't had a new thought in 40 years, and trump barely won. i'm not saying it's a legitimate win, it's a totally legitimate win. but the fact that because a lot of his people are like foaming at the mouth and you know, if you ever go on twitter and make a joke -- you can't even make a joke at democratics' expense with donald trump in it because the other day donald trump was in cincinnati and during all the cable shows were showing the people in the stadium he was at, and it was a totally white audience and i tweeted, i haven't seen an audience this white since prairie home companion came to cincinnati.aru know, the white mob at npr, i'm getting tweets saying why are you bringing race into everything. trumpites.

they're a thin-skinned bunch. there aren't that many of them actually. there were enough to get him in the white house, good for them, wonderful. we can work with that. as libertarians because we're coming at -- we have a future oriented philosophy, we're interested in technology, we're interested in true diversity. of different people, different foods, different genders, different ideas. i mean, we're the future. this is going to be a very good time for us as long as we don't get caught up in trying to be, you know, republicans or democrats in any kind of dunderheaded way. >> mm-hmm. >> one additional point. you know, every time you have a discussion about fairness of fake reporting or impolite speech or whatever it is, the usual suspect is always free speech. >> mm-hmm.

>> let's ban something, then everything will get better. it's the easy way out for politicians and for you know, group with a specific agenda. it doesn't help. that's not the way to do it. and i think in this old discussion about facebook and social media, we shouldn't forget, even though i'm not a marxist or a socialist, we shouldn't forget they have businesses, they are here to make money and not to create knowledge production or challenge people. they have to make them comfortable. so we shouldn't fool ourselves about you know, what facebook and google are doing. >> and if i can just to follow up on that, we had been talking about this a bit before, that is something else, you know, that i think trump is really bringing to the fore. he is not a capitalist. i mean, he is not a milton freedman capitalist, not like john macky of whole foods, who are committed libertarians, they're committed businessmen as well and that is important, but google and facebook have already

shown that they're more than willing to accommodate autocratic regimes, authoritarian regimes, that's their right and everything, but we should not fool ourselves that you know, they will respond to what the market demands, ultimately, and at this point, the market in politics can be pretty close. we need to create, i guess, you know, to go back to that question of building up this market for enlightenment ideas, of tolerance, pluralism, diversity of thought and diversity of life tile, we need to make that the clear market choice. so that given the option, google will say, you know what? we're going to go with choices. more discussion, more diversity, more conflict that is mediated in a positive thoughtful way, rather than going with stupid codes.laws or speech i mean, the european union's

code is insane. and you were saying that you know, because facebook and google aren't getting on their knees fast enough, the eu is saying we'll follow up with legislation, which will be a thousand times worse. but you know, this is a fight that will be fought until we die. >> right. >> so what he is talking about is a conduct that was signed by facebook, google, twitter and youtube earlier this year with the european commission in order to fight hate speech. the problem in that code of conduct is there is no clear definition of what hate speech is, and they are obliged to remove hate speech content within 24 hours. >> yes. >> and the european commission so far is quite dissatisfied and they've threatened companies to pass laws so it is not just a code of conduct if they don't move faster on these notifications, i think they received 600 notifications within six months or --

>> right. and certainly twitter and facebook have both cracked down significantly in their own tos and their managerial practices in the a time sense. what they will allow you to say or do or what they'll do if you are an individual who is managing a page, for instance. you have to delete those comments or else your page will get punished for it. >> on twitter a month or two ago deleted a bunch of alt-right accounts. again, twitter, it's a private enterprise, it's their sand box, they can kick anybody out they want. but it's fundamentally stupid. because you know, the way that i think you manage that kind of issue is by -- i mean, they kick these people out even as they were expanding the tools by which you could block or suppress people you don't want to hear from. which again is both great and there are problems there. i mean, we need to be critical in nuance in our understanding of that. but you know, this -- you know,

again, we need to be in favor of more speech is always better than less speech even if it's really stupid speech. and we can ignore it or engage it. but you know, there are problems. the upside of that is that twitter as a medium has been flat. instagram and snapchat actually have more daily users, nobody wants to buy twitter. >> that's actually, twitter is interesting, because we were talking about this market mechanism and they have all this legal repercussions they are looking at. but they are also looking at their stock price thinking at a time when people were saying they were the platform for white supremacists. >> it's also partly because they're getting antsy about cutting more people off who are white supremacists or alt-righters or whatever, and they suspended the account of glen reynolds, the pundit who is

a legal blogger, one of the main guys on the internet really, like, that was nuts. i think the -- to the extent that the platform is flattening and the stock market price is tanking it's more because they're seen as being more 2 pc, not that they're pc enough or suddenly a hot bed for some kind of waffen s.s. tribute band or something. >> right. so on that note, what is the line when we're talking about government restrictions versus private company restrictions on free expression, you know, we're libertarians, we tend to believe that private companies should be able to run their businesses they want to, it's freedom of association, but the same time we're talking about how closely intertwined all of this is. >> i think you have to make that distinction and if you don't like the restrictions that a

private company imposes, then you can leave and don't work there and don't buy the product or whatever it is. but i think -- i think media, if they insist that they are, you know -- is the fourth estate that has a right and obligation to control you know, the judiciary, the executive and legal powers, then they need to be transparent and you know, self critical and look inward to an extent that other businesses don't necessarily have to. they can just make decisions because they are here to make money and that's fine. but if you insist on that kind i semi-power status, than

think it comes with certain obligations as well also when it comes to free speech. >> the united states is odd and you know, and unique and maybe exceptional in the language of the first amendment. which took a while, you know, to get -- to come into being. but congress should make no law, we know that -- it's not at all opaque. government doesn't have any role in regulating speech. private businesses -- and this is an interesting question about transparency, because part of the argument about facebook question were they using algorithm i ams to kind of trash or keep conservative news down in the election, it's unclear. and i don't even think they know necessarily fully what was going on. >> a lot is done by little robots.

>> it's not clear what any of that means. it's also like a lot of the news stories, sorry but breitbart.com is a powerful, important force in media, it's not a news site, as an opinion site and there is nothing wrong with that. it's not news, it shouldn't be treated the same way and an algorithm is something else. by the same token, i agree completely, you should recognize, i don't have any control over facebook, that is different than say a publication like "reason." we're transparent in what we publish and why we publish it. when we control it completely and we should, readers can read it or not. they can comment or not, as long as the federal government isn't on our ass about it. facebook pretends to be this platform, it's a little different. it's not a publication and they need to be more transparent, they have a right to do whatever they want, but then they will either reap the rewards or suffer the consequences, if everywalled garden, same, they'rehe

trying to keep people in facebook so you never want to leave or you never have to leave. if it starts looking like a really dull subdivision or you know, fake cityscape. >> they're already facing this problem, they're not getting the attrition and they have -- younger folks who will not join. >> so they're going to have to be more diverse and have to put in the west world vision of this, they're going to have to put in that samurai model, so people can check out that part of the park and not just the wild west. >> so i'm sure everyone in the audience has a lot of questions, we'll get to those. but before i have one more for you. based upon the fact that both hillary clinton and donald trump had called for closing down parts of the web, we talked about the silk road. >> within 24 hours of each other, by the way. >> precisely. >> every time you are no there is a difference between the republican and democrat party, something like that happens. >> little reminder. we talked about, you know, your

article was about the silk road which was of course on the deep web, inaccessible and other things like that. is there ever a justification for the government to shut down parts of the internet such as the deep web or particular websites or message boards or things like that, if so, what would be it? >> it's going on in europe everyday right now when it comes to jihadist content. denmark's parliament just passed a law where it becomes a criminal offense to share extremist content. so if you are a scholar and you study isis and you want to share the topic, which is the magazine of isis, you may end up in prison. i think that is very, very problematic. >> we've had -- people get punished here as well, for instance, the dallas police

department after the shooting that happened earlier this year arrested several people who had tweeted saying that it was good that cops died in dallas. i mean -- >> that's very offensive, but i don't think it's a criminal offense. you should react, you should, you know, yell at these people and denounce them, but i don't think you should criminalize that kind of speech. >> there are web sites that are criminal enterprises, there are fraudulent web sites that rip people off. i think something like child pornography, the child pornography, the production of it, is the -- it's kind of evidence of a crime, taking place. so the production of it, web sites that produce it, yeah, they could be shut down. among consenting adults, no, but the justice department actually does that. from time to time. which i think is stupid.

so i think there are clear cases that are extremely rare and limited and kind of self evident in a way. yeah, where the government can shut down certain web sites. i don't think the government can shut down parts of the internet. they can make it more difficult to operate. they can make it a tax in terms of your time or in terms of the possible outcome. but they really don't have that. and that one was of the things that was strange about donald trump, who you know, i am hoping will be a very successful president. he actually says certain things about regulation, he mentioned the fcc. so far he is good on school choice. give more people school choice, i'm for that. he also, you know, he doesn't grasp a lot of the details. and when he talked about shutting down that internet, he said i'm going to talk to bill gates and it's kind of like, you are already -- bill gates had his lunch eaten by the internet.

that was microsoft's downfall of migrating to the internet. i'm not expecting a lot of like visionary leadership on his part. but to the strength of this, he can't shut it down and most governments can't. >> the internet is like a hydra. you cut off one head it comes up somewhere else. do we have any questions from the audience? i ask you keep them short and i will keep them back so the folks on the live stream can hear them. >> carl -- >> we have a microphone coming down actually, so -- carl. i was a 911 responder as a special agent of the u.s. custom agent office of internal affairs, i went to november of that year to ground zero and helped sift through the rubble, the third building that collapsed that day. there is a tyranny of silence in the media about that. newseum there --

>> wait a minute. are you a truther about building seven? >> i'm a criminal investigator who went through the rubble. >> the world trade center, the collapse that was an inside job? >> what was your question? >> i was interrupted, pardon me. this fall i hand-delivered to every member of congress a 48 page document by the organization ae 911 truth.org. it is a scientific evidence in all three world trade center towers. >> what is the question? >> president trump has indicated there will be a reinvestigation of 911, he acknowledged that two airplanes can't cause three skyscrapers to collapse within the space of 8 hours. so what do you think, are we going to actually -- i have copies for each of you -- >> i will say for myself, i won't speak for you. the airplanes that flew into the world trade center, twin towers

-- are what caused that to collapse. when you have that kind of event happening, other parts of the world trade center are likely to collapse as well. so i don't -- yeah, yeah, yeah. i'm deep on whether or not jet fuel can burn structural steel, thanks. >> i'm not sure that is a free speech question. thank you. >> i like that trump said we issue can boeing's contract for air force one that is over due and overbudget, this i think would be a waste of taxpayer money. >> question back there. >> i am a citizen journalist and most of my stuff is free which a lot of people don't like because i'm competing with them. my basic question is this, the terror threat, the jihady terror threat we've been hearing particularly from isis seems to be trying to make ordinary

civilians in western countries in the united states into targets as if they were combatants, as if they were on the hook for anything we do. in other words, create a state of war in the united states. does that justify more censorship or more control of the internet or emergency powers, that could be particularly relevant in the way i operate. it's something i'm very concerned about. >> okay. >> could that really be used as justification, because individual citizens are being made target which is in ways that are unprecedented. >> if we're in a state of war, a perpetual state of war, should comments made a online or beough citizen journalists treated as if they were being made during war powers. >> this is an argument against war, warsstates of that don't have clear objectives or end point where we don't even

know if we won, those are bad wars to wage. whether it is a war on want, a war on pot, a war on poverty, or a war on radical jihad. i would leave it more to the person who is the actual object both of governmental censorship and personal attacks. >> i didn't understand the question. >> so i think he is asking if we war,n a constant state of does that change how people should be censored online. journalists should be censored. >> the historical evidence speaks to the fact that in times of war, governments tend to overreact. and it's very easy to you know, to turn up the heat on free speech and censorship. and it is very difficult to -- >> reverse it.

>> yes. so i think experience tells us that the tendency is that governments do overreact and because in a state of war, you know, you want to identify enemies. is filederns of speech over and quite often afterwards when people look at that, they say why did we have to be in that kind of speech? reaction a natural medium to be on guard because people tend to overreact and we saw that after 9/11. -- look atou saw it the kind of laws that were passed and the kind of powers that were given to the executive, how can that happen in a liberal democracy? >> to tie it into fake news versus real news and on going arguments about journalism and to the particular question of individual citizen journalists, i don't know any journalists, they're citizens of some country, we're all citizen journalists, there is a constant

push among a professional class to say we need to certify who is a real journalist and who isn't, do bloggers get the samesame constitutional protection as someone at "the new york times," and it is like yes. of course they do. there is no distinction to be drawn from that. and i think one of the ways we need to talk about this overreaction is shield laws where you hide your sources because you work for "the times" or something. these are all phony baloney ways of licensing and regulating the press and you know, one of the great things about america is we dealt with that in the colonial era, essentially and we shouldn't go down that road again. >> definitely. i would like to ask this question from julia, is the production of knowledge under threat with the rise of social media. >> we'll have to wait and see. but what i said, you know, this

reinforcement of confirmation bias goes against the knowledge production. and is kind of built into the business model of facebook and other social media. but i don't think you have -- you know, you control that as a clear-cut conclusion. we'll have to work on it. >> one of the things, too, that i think is good about -- yeah, knowledge production is something we should always be guarding, you know, in favor, like we should be making it easier. i think a lot about the justin, the libertarian-leaning republican congressman from michigan, he talked about when he was at university michigan law school, which by the way is a well regarded law school of a terrible football school, but he was told by somebody, he always thought of himself as a conservative republican, because that's the family he grew up in

and then somebody said, no, you are a libertarian. and he went home and googled libertarian and he recognized who he was. so in that sense, i think social media, i think the internet more broadly, i think this whole idea of social media is more a marketing term than a lived reality, necessarily. but it's definitely true, you can live in a better, more well - furnished bubble than ever before but you can also find -- more weirdp shit all over the place they can ever before. and we were talking about this, if you are in my age, i'm in my early 50s and i wanted to get reason magazine or a publication, i would mail away and it would take months and they wouldn't get it right or it wouldn't show up. it was hard. it's so much easier as a millennial to get more information at your fingertips about something, you are watching history channel and you are -- you have your laptop or tablet out and you are wikipediaing stuff as the show is on, it's a much richer

environment for that kind of interesting -- -- >> more access. i can see it for myself, too. i discovered the cato institution as a teenager, and i found out i was a libertarian and started reading about it. someone sent me the four-way political test. >> to follow a point on knowledge production and the threat to knowledge production. i think the problem the value the culture in society put in emotions, if you feel something, it's right. and it's very difficult to argue with somebody who insists you know, that is what i feel. and i think social media will, you know, liking and sharing instead of making more elaborate arguments for one position or another also feeds this status of emotions. and i think that is undermining knowledge production.

because you can -- i mean that is what is going on on campuses, if you say i'm offended. >> yes. yes. >> and it's a way of saying, please shut up. and it's a very powerful argument and it feels very intimidate, because you don't want to offend other people, you want to be nice. >> and instead of focusing on the difference between denmark and my home state of new jersey -- nobody wants to be nice and new jersey. but i think yes, the emphasis on feelings and the emotional responses is strong. i think it's always been that way. i say this to somebody who edited the print magazine and works for an organization called -- when i wanted became editor i said can i change the name to limits to reason, that is more in keeping

with my sense of things. but i agree, it's hard, but it's also -- you know, again, we have more platforms by which to host debates and conversations and to be persuasive. and if i can put on my libertarian hat or my classical movement hat, one of the things we need to think about, especially in an era where the old dogmas are dying, young people are looking, young people, old people are looking for something new. we also need to think about being persuasive, not simply expressive it in saying the perfect libertarian solution and priet sidewalks and private air, if you come on my property i will shoot you. yeah, whatever. but we're also trying to persuade people by endenied erring the way people are living because it's prosperous and fair and moral. and rewarding. so, that is something, you now i know i slip into every once and a while. especially, you know, the small wee hour twitter moments, you know.

you want to be persuasive, not simply expressive. >> on that note, i have another question here from twitter. asking how can we differ shat -- differentiate free speech from public or indecency. is it dangerous to let judges make this distinction? >> just a short point. i think -- i think we shouldn't -- we should leave as little as possible up to judges. and you know, there is an inclination. >> you will not say they should be put into wood chippers or anything, right, if so i'm under a court order to kind of pretend i can't hear. >> no. i think too many politicians and the public, every time you are confronted with a new problem or with a challenge, you know, let's pass a law to fight this problem, and i think we need to be more you know, moderate about

that. but one man's hate speech is another man's poetry and it's the same with decency and obscenity. i mean, you used a certain word talking here, you don't think it's you know, indecent, but there may be people out in public -- >> i am sure i will hear from them. >> that's a man of taste and -- >> it's been my life's dream to work blue on c span so i may have accomplished that. >> obscenity, by the way, is a made-up, fake category. there is no such thing as obscenity as a legal, constitutional and simple. if you do not like somebody's speech, lock them. move away from them.

move out of your shot. don't turn to that channel. don't read that book, don't read that website. i think maybe some of you have heard the term "abandon austin boston."d in because they had a tendency to ban all sorts of stuff and it's like, it's really hard to do that. and i think that is good. public indecency is a little bit different because in public spaces there is a lower you know, you have the more public of spaces, meaning that it's in full view and that you can infringe on other people's equal rights, there is a lower standard of self expression. >> isn't the internet very public, if there is a public space. >> other than the important thertisements that --

thatgraphic advertisements fill my web box or browser without me ever going there once. i don't know many web sites i'm forced to go to. i mean it's really all a poll mechanism. i'm firing up my browser, the browser isn't firing me up, you know. >> fred from the daily ripple. today we watched the president-elect money i manipulate the stock of a major corporation with a tweet. isn't there some sort of a freedom of speech that eliminates the president from using that to profit from that. if he knows, look, i don't like this company, i'm going to buy short on them and then i'm going to say a tweet on it, and manipulate the stocks, i mean,

he has robert merser, hedge fund manager behind him and all these other bankers that would be able to benefit from that. is there an infringement of speech by telling the president he cannot do that legally. >> that's -- i -- i don't know. you know, one thing i will say, i'm much more troubled by the president-elect's actions towards carrier and a couple of other companies supposedly he is going to bail out or make stay in the united states in indiana, there is a ball bearing company whose name i am for getting right now. with boeing, you know, on a certain level, they have gotten in a widesidies friday of state, local and federal. overcharging for a plane that they're overbudget on delivering. i do think you know, what we're seeing here actually with a president who is as kind of unbounded as trump, we're going to see some interesting kind of situations that we really couldn't have thought about before. and so i don't have a clear answer to that. but you know, boeing stock price is a small order issue for me compared to kind of national protectionist economic policy

more broadly. that i think is going to have more problems for us in the future. >> all right. i think we have room for one final question from the audience. >> bill with future 500, i teach at a business school i noticed over the last year that i think and i think you would probably agree that there is tremendously more support on campus by students for free and open speech and even uncomfortable speech than there is for bans or restrictions or safe spaces and so on and yet we do as faculty have some guidelines that have been provided to us to you know limit to that kind of speech. given that the combative forces are always going to attract more media attention and seem to have more dominant support than they actually do, what are folks in

the free market community doing to really actively take advantage of this opportunity on campuses and bring more people into this movement right now when they are really ready, a lot of students see the problem, they see it everyday, they want to be organized, but it's not going to -- it's not going to just happen through, sorry to say, free media coverage. it's just not sexy. what is -- what are people who care about this issue doing to attract people who don't necessarily find themselves in that box on the quiz to join and begin to learn what freedom and free markets and speech are all about? >> i don't know, i don't have an answer. facebook and twitter. [laughter] >> no, i don't know. >> i think that there is a number of things that are being done and you know, an outfit

cato and some of the groups cato,ave come out of liberty" "students for which was founded by cato intern who first worked at reason by the way i just want to put that out there, young americans for liberty, there are a growing number of campus groups that bring people to campuses that actually stage events and lectures and panels and what not, at universities, which i think is a good place to start. when you look at something like the foundation for economic foundation, which i think lays claim to being the oldest libertarian organization, they're rejuvenated, they're reaching more students in high school probably than ever before . "reason" is talking to millennials and younger people in terms of both the way that we talk about the future, the way that we talk about topics that relate to things like privacy, security, free speech, gender,

like acceptance of more than a binary choice and genders, just as we shouldn't accept a binary politics, i think that is one way to do it. and i think this -- to go to that question of knowledge production, we need to be producing the public intellectuals, libertarians need to be producing public intellectuals who are writing work that engages a multiage generationalmulti- public with the ideas of freedom and liberty and showing the positive outcomes of giving people freedom. >> i fully agree. and i think the language that we're using is the language of this group. >> i think there is some truth to that. >> you need to go to the 21st century. just the word "liberty" is now bound with presumptions and republicanism, i think it turns students off or closes the door before it gets there. >> i agree and there are a

couple of issues. you know, a couple years ago, reason did this big poll of millennials and it was done by overseen by someone who is now working at the cato institute. one of the things we found in that it was something like 42% of people 18-29 had positive views of socialism, it's like holy cow this is a lost generation. and then we followed up -- the follow up question is what does socialism mean and they had no idea. so we were letting language that was imprecise get in the way. because then we asked in a parallel question, do you think -- is it better to every government-managed economy or should free markets govern the economy? and everybody was in favor of free market. so, it is a constant search to find, what is that language that unlocks the next generation. and polls those of us who are older who remember the cold war fleming and i were talking about this, you know, we, in america, we have a foreign policy that is still stuck in a cold war mentality, and we're fighting,

you know, radical islam as if it's the soviet union circa 1960. you know, the cold war wasn't as clear-cut as we thought it was and trying to transpose that matrix, decision matrix onto something today is totally wrong and the same thing happens with our movement. we need to constantly be refreshing our terms, our understanding, what is important to people today is not what was important to barry goldwater in 1964 and we need to understand that and act on that for sure. >> and the terms people use are completely different. >> yeah. but i would say if liberty is a republican word then -- i mean i spoke about tolerance. to most people, tolerance is in fact a positive word. it has positive connotation, so i mean, that is a way to start. the connection between free speech and tolerance is, you know, if you break that, you

don't have neither tolerance nor free speech. so -- >> so with that, i would like to ask both of you, in just one or two sentences, what do you really want people to get out of this discussion today, what is the most important thing that they can go home with? >> i think i'm going to repeat myself. i think the world is getting you know, increasingly more diverse. and in order to be able to live together in this increasingly diverse world, tolerance is in fact a key concept. not in the way it's being taught and talked about in everyday life, it means you should shut off and not say offensive things, but the ability to live with things that you hate without banning them or using

intimidation, threats or violence to shut them up. i think this will just move further and further up the agenda, more and more people are living in cities, so we will be confronted with this every day. and unfortunately too many politicians believe that you know, the more diversity we have in terms of culture and religion, the less we need in terms of speech. i think it's counterintuitive. i mean, it goes with the territory, if you will more diversity of culture, you also need to welcome more diversity of speech in order to provide space to every individual in a society and that implies of course, that now one has a right not to be offended. that is also one of the things that we have to teach our children, coming back to my

grandson and his soccer sunday. >> what position does he play, by the way? >> he does not play positions in yet. he is only four-years-old. so he is still just kicking the ball. >> i'm looking in preparation for this, i printed out a -- i write for the "daily beast" a year ago i read a piece for them that was titled or they titled how the feds asked me to rat out come mentors. -- rat out the commenters. that happened under the obama regime. it's going to happen as frequently if not more frequently under a trump regime. we need to fight that always and everywhere and it's going to happen, you know, on facebook. it's going to happen in the corporate space, cultural space -- the other thing i will say as kind of an add on is that if we all broadly believe in classical goals, of libertarian

enlightenment goals, libertarian goals, really think about being persuasive rather than being right in every conversation. i'm the worst offender at this. what we're trying to do is build a world that is better than the one we inherited. i think it is getting better and the way we will make it better still is by getting more people to want to hang out with us, not by saying oh, yeah you are you know -- your culture is so great, york litter ectomy culture. wherejust as good as me we let people decide who they want to be. -- your clitorectomy culture is just as good as mine, where we let people beside who they want to be. it's not being that kind of tolerant, that kind of mindless celebration of diversity. it's actually saying, look, you know, we can go to -- i don't know how many are of you are in

d.c., we can live in a world that is like the sociallist safeway on 17th street where -- it's much better than ten years ago, we can live in a crappy supermarket world like that or go to whole foods, which world do you want to be in. one is inviting, vibrant, one is different, one is constantly changing. or we can go someplace where there is only one kind of the eggplant. noteed to be persuasive, simply right in every conversation when we talk about freedom and liberty. >> we want to live in a world with many types of eggplants. >> i realized i signaled my al-qaeda masters. i realize that a plant -- eggplant mean something different and i apologize to c-span. >> thank all of you for coming out. and those who tuned in on cspan or one of our online channels. i hope you all enjoyed this discussion today and will continue it out in the winter garden for our reception. flemming rose has gratuitously -- graciously offered to be

signing copies of his books, if you would like a copy feel free to pick up. it's just come out in paper back, very recently. so it's very convenient. and please feel free to sign up for the mailing list to hear about future cato digitals. thank you. [applause] >> c-span, where history unfolds daily daily. in 1979 c-span was created as a public service by america's cable television companies into spot to you today by your cable or satellite provider. >> a senate panel today examines the impact that the at&t-time warner merger would have on consumers. we will hear from the ceo's of at&t and warner the senate judiciary subcommittee begins at 10:00 a.m. eastern on c-span3. later, a resolution written to

fund the government. current funding runs out friday at midnight. the committee will also work on a water resources measure that includes water for flint, michigan plus system. also on c-span3. you can seem a live on -- you can stream it live on the c-span website or listen live on the c-span radio app. washington journal is next. the house is in at 10:00 a.m. for speeches. in the afternoon they will work on the insurance standards bill. here onlth coverage c-span. coming up this hour we will talk to ohio congressman tim ryan for his unsuccessful run for house leader last week. then a conversation with indiana governor on the republican lamb for the affordable care act.

later, presidential historian on the 75th anniversary of pearl harbor and its impact on the u.s. role in the world. 7, 1941,day, december a date which will live in infamy. ♪ host: today marks the 75th anniversary of the attack on pearl harbor. flags are at half staff to mark the event in honor of the american soldiers and civilians who died that sunday morning in 1941. we will begin our program today hearing from you come out viewers, about the legacy and lessons of the attack on pearl harbor. we will