All posts by Heather Gerken

Amicus Brief in Whitford

I just had the pleasure of filing an amicus brief in the Supreme Court’s partisan gerrymandering case, Whitford, with all-stars Jonathan Katz, Gary King, Larry Sabato, and Sam Wang. The brief not only reflects the views of some of the best minds in the field; it is also likely to be the only brief that cites Shakespeare, the Bible, and John Rawls.

The brief makes three main points. First, the path for resolving this case is clear because the Court has trod it so many times before. In elections controversies and controversies on which elections ride, the Court has largely hewed to the same approach. It has announced what Justice Kennedy calls a “workable standard” while leaving the precise test to be ironed out by the lower courts.

Second, a workable standard is readily available: partisan symmetry. It relies on the simplest, most intuitive test for detecting discrimination: what would happen if the tables were turned? The roots of this standard are ancient, and it enjoys resounding support among social scientists.

Finally, despite partisan symmetry’s many merits, the brief nonetheless urges the Court to assure itself that the standard will lend itself to manageable tests going forward. The brief then identifies several criteria for making that judgment: Whatever test is used should be reliable and difficult to manipulate. The test should deploy actual election outcomes rather than hypothetical maps created by experts. Courts should be able to adapt the symmetry standard to different contexts and apply it without relying unduly on experts or displacing appropriate democratic judgments. Finally, the test should measure electoral opportunity rather than guarantee proportional victories and map cleanly onto the constitutional wrongs that animate redistricting law.

It was an honor to work with such extraordinary academics. Princeton’s Sam Wang gets special credit for the many hours he spent walking through the social science with me and framing arguments. This was also a chance to revisit the pleasures of writing a brief. If my new day job doesn’t work out….

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The Future of the Party and Campaign Finance — A Response to Bob Bauer

(with Joey Fishkin, University of Texas Law School)

Bob Bauer just offered a thoughtful and engaging commentary on our work and a new report by the Brennan Center, both focused on the relationship between the political parties and campaign finance. We agree with part of Bob’s post and think the rest is plausible—and who knows, he might even be right.

An outsider might find it strange that we’d find a post that is nominally a challenge to our work to be so convincing. But the truth is that none of us can make dependable predictions in the highly volatile world of politics these days. We’re in uncharted territory. For instance, these days no one can even confidently identify which candidate the once-predictable Republican primary electorate is going to choose as a standard bearer—in part because the old rule, which was that the winner will be the establishment candidate with all the hard-money donors, no longer seems to be the rule. Things are changing more quickly than anyone anticipated, and we’re all struggling just to keep up with the latest innovations of this campaign season.

The debate between Bob and us centers on a simple question: what happens if we fund the formal parties in the same way we fund the shadow parties (the SupertPACs and 501(c)(4) and (c)(6) organizations)? Our worry is that if the formal parties’ financing is identical to that of the shadow parties’, this will gradually transform the formal parties into institutions that look more like the shadow parties—hierarchical, almost entirely beholden to big donors—thus seriously eroding what remains of a reasonably pluralistic party system. Bob’s worry, on the other side, is that if we don’t do something to level the playing field between the formal parties and shadow parties, the formal parties don’t have much of a future in politics.

We think Bob may overstate the differences between our positions, though that’s likely due to a failure of exposition on our part. Bob reads us as opposing all change in the way we fund parties. But we are pretty close to where Bob is on these questions. We aren’t ready to go as far as Tom Edsall and lift all restrictions. But, like Bob, we are certainly open to a more robust funding structure, especially one targeted—as the Brennan Center’s report is—at certain type of party activities. At least one of us is ready to support substantial increases in the contribution caps, and both of us favor allowing candidates and parties to work more closely together in raising and spending money. We’re just not ready to reproduce, jot for jot, the funding structure for the parties that we now have for the SuperPACs and 501(c) organizations.

It’s possible that both Bob and the two of us are right, and it’s just as possible that we all are wrong. And therein lies the dilemma for those interested in reform. The two of us are nervous about flipping the switch and letting the parties raise unlimited sums. We thus approach the problem more cautiously than Bob. He seems ready to flip the switch, at least as an experiment. We think it is better to be cautious. To mix our metaphors in an egregious fashion, it’s going to be very hard to put the genie back in the bottle. Once the parties become accustomed to unlimited fundraising, what incentive will they have to regulate themselves? And if donors become accustomed to ruling the official party organizations the way they rule their own shadow party entities, those expectations will become very hard to unwind. Even so, it’s important to give Bob’s proposal its due, and that is this: There are costs to not acting just as there are costs to acting. There are costs to doing too little as well as to doing too much. The formal parties might well wither and die if we don’t find some way to get them the funding to compete. We’re all muddling through, in other words.

Modesty is an underappreciated virtue in academic writing, and our paper had modest aims. We were under no illusions that everyone would be convinced that we were right on the prediction side; we aren’t that certain we are right ourselves. What we wanted to do was spark a different conversation about the future of the political parties, one that wasn’t confined to “strengthening” the parties but that paid attention to the crucial institutional differences between the shadow parties and the formal parties. We wanted, in short, to spark just the conversation that Bob and the Brennan Center and others are now having.

 

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Citizens United and the Future of the American Political Party

With Joey Fishkin, University of Texas Law School

The Brennan Center has just released a new report on the future of campaign finance. There are going to be a lot of reports like these during the next few years as the reform community wrestles with the legacy of Citizens United and tries to identify the path forward. We’ll be lucky if most of these reports are as pragmatic and intellectually serious as this one. (In the interest of full disclosure, we should note that we were both consulted during the process of writing the report). It’s worth highlighting several key moves that the report makes.

First, the report centers on the important role the political parties play in our democracy.This focus is itself good evidence of the pragmatism of the authors, Ian Vandewalker and Daniel Weiner. The political parties have long been targets of reformers’ ire and have largely been treated as agents of corruption (and obstacles to reform). But as the Brennan report recognizes, the political parties are essential to the long-term health of our democracy, and they have changed fundamentally and dramatically in ways that ought to concern us.

In focusing on political parties, the authors don’t make the mistake of equating the official parties (the GOP and the Democratic Party) with “the” party. As we’ve written elsewhere, these days “the party today is best understood as a loose coalition of diverse entities, some official and some not, organized around a popular national brand. The official party organization is part of it, but so too are independent entities—not just shadow parties, but groups likes the NRA, the teachers’ unions, and the Heritage Foundation. Officeholders are also part of this coalition, as are donors and activists. All are part of the party writ large.” That move allows the authors to track what we’ve described as the strange, seemingly contradictory status of the political parties right now. High levels of polarization and partisanship have made the parties writ large quite strong. But the official parties are weakening as they lose money, talent, and power to what we’ve called the “shadow parties.”

The Brennan report insists – again, rightly in our view – that political participation matters, and that one of the important costs associated with the decline of the official parties is that we are losing crucial sites for democratic participation and pluralist politics. Relative to the shadow parties, the official parties have many points of entry; they are more porous and more open to average voters. The shadow parties, in contrast, are designed to answer to their funders and their funders alone. As money and power shift from the official parties to the shadow parties, opportunities for participation and pluralism decline. This shift is one of the most important things happening right now in the American political system; we think the Brennan report is right to highlight it and to focus on these consequences.

While we thought that many of the proposals the Brennan Center put forward were well worth considering, we particularly welcomed the authors’ attention to the unintended consequences of one reform proposal that is popular these days: leveling the playing field between the shadow parties and the official parties by allowing the latter to raise large sums of money in the same fashion the shadow parties do. We understand the impulse behind this proposal. But the authors rightly worry that changing how the official parties are funded might also change how they are structured. We must be attentive to the risk is that the official parties won’t be the same official parties that play such a welcome role in our system but will instead look more like the shadow parties than we intend. In other words, if we allow the official parties to be funded exactly the way the shadow parties are funded, will they soon also be run the way the shadow parties are run? There’s no way to know in advance, but there are plenty of reasons why we might not want to find out.

 

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An Academic Elegy

Guy-Urïel Charles and Luis Fuentes-Rohwer, have a new piece in the Iowa Law Review. I offered a commentary, here. Just to give you a flavor for the piece is, here’s a brief excerpt from my introduction, which offers a rough summary of their argument:

It feels like a moment. I know I’m supposed to analyze this piece from a purely academic perspective, but first I want to mark the occasion. Guy-Urïel Charles and Luis Fuentes-Rohwer, two of the most astute commentators on the intersection of election law and civil rights, think it’s time to give up on Section 5 of the Voting Rights Act (“VRA”), perhaps it’s even time to give up on the civil-rights paradigm altogether. When I assigned this paper to my class, one of the students said that she realized it’s time for her to start mourning the Voting Rights Act because it’s never coming back.

For me, the mourning process began when Shelby County v. Holder came down. But until I’d read “The Voting Rights Act in Winter: The Death of a Superstatute,” I’d been a naïve cynic (or a cynical naïf). I’d hoped that I wasn’t being hopeful enough. But when the always-wise and ever-optimistic Guy Charles—the academic who insisted in 2006 that the civil-rights community should reject the renewal act and try for better—tells us that something’s over, it’s probably over. When the duo that valiantly tried to lay the groundwork for rebuilding Section 5 tells you it’s time to chart a different course, it’s probably time to chart a different course.

None of this will be easy to hear if you still subscribe to the political consensus that animated the Voting Rights Act, if you believe that Section 5 was the crown jewel of the VRA, if you think that we still need an administrative alternative to costly litigation for race-based voting claims. Now feels like an especially hard time to hear that we must set aside the race-discrimination model given how large Ferguson and Garner loom. Which is why it takes a certain kind of courage to write what Charles and Fuentes-Rohwer have written here. If you think it’s hard to hear these things, just imagine how hard it is to write them, at least for people who haven’t spent their careers playing the studied contrarian.

Academic pieces are strange creatures, and they aren’t well suited for elegies. Yet this feels like one to me. Academics are strange creatures themselves. Perhaps, then, it’s not surprising that an elegy by two scholars would come in the form this one does: the systematic, clear-eyed, and relentless documenting of the death of a superstatute. It feels like the scholarly equivalent of a doctor calling it when the patient’s heart has stopped.

Perhaps because this is an elegy wrapped in a piece of scholarship, some readers will offer the conventional academic critique and say that there are really two articles here. The first half of the Article charts the death of a superstatute, and the second imagines a new future for voting rights.

At first glance, the two subjects seem unrelated. The first half enters into a conversation (carried on mostly by my colleagues at Yale) about what Ernie Young has called “the constitution outside the Constitution” — those sturdy, stable programs and principles that constitute our society even if they are not enshrined in our Constitution’s text. The death of a superstatute is an understudied topic precisely because superstatutes aren’t supposed to die. The second half of the Article, meanwhile, continues a conversation that the field of election law had been having ever since the oral argument in Northwest Austin Municipal District No. 1 v. Holder (“NAMUDNO”), one that is more pragmatically focused on identifying a framework for resolving elections claims. That conversation is not nearly as wide-ranging or theoretically oriented as the one on superstatutes. Election law scholars, after all, are trying to come up with a regulatory scheme at the intersection of what Congress can pass and what the Court can accept, and it may well be a null set. These are different conversations, and it’s no wonder that the two halves of the Article read so differently.

While I have something to say about each part of the Article, I think the two pieces are much more closely related than that. To be sure, the effort to chart the death of a superstatute is interesting standing alone and generates its own cache of insights, as I note below. But this argument serves a larger purpose here: It reminds you how much work it takes to maintain a superstatute in the first place. Those who resist the premise of the second half of the Article—that it’s time to chart a new course—must first grapple with the truths in the first half of the Article. As the authors show, it was a huge lift to get three branches of government to work in conjunction with one another to support Section 5. For those who think that all we need is a fifth vote on the Supreme Court to restore Section 5 to her old glory, Charles and Fuentes-Rohwer remind us just how many times the Court and Congress and the Executive Branch had to bend over backwards not just to keep the old girl alive, but to maintain Section 5 as a vibrant regulatory framework. This analysis will be sobering to those who want to cast Shelby County simply as a 5–4 ruling rather than part of a political sea change. Indeed, the first half of the Article makes clear just how far these tides have receded. While the two halves of the Article are quite different, then, they plainly work in tandem and deepen the authors’ argument along almost every dimension.

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Whose party is it anyway?

Coauthored with Joseph Fishkin, University of Texas Law School

In yesterday’s post, we described how major functions once performed by official party organizations are migrating instead to what we call shadow parties—groups situated outside the official party apparatus, but clearly aligned with one party or the other. The Koch brothers are at the leading edge of the trend. Their fundraising network and complicated array of “outside” groups are increasingly developing the capabilities to provide most of the services one would previously have expected the official party to provide to campaigns—from fundraising networks to television ads. Now the Koch brothers are even offering a voter database with a software interface that many campaigns prefer to the RNC’s.

As we noted yesterday, some people describe this as a fight between “the party” and “outside groups,” but that frame conceals a lot of the real action. The Koch brothers are almost as deeply intertwined with the Republican Party as the RNC itself is. But there are differences. The Koch brothers represent a faction within the party, rather than the party as a whole. Their shadow party groups answer to the people who write the checks, not the rest of the party. This fight is an internal struggle for control of the party. And it’s starting to be clear who has the upper hand in that struggle. The big winners are likely to be those intra-party factions with the enormous resources necessary to rival and sometimes beat the official party at its own game.

So, a skeptic might ask, isn’t this basically a case of what Sam Issacharoff and Pam Karlan call the “hydraulics” of campaign finance reform, where money blocked from one channel (the official parties) flows through another (the shadow parties)? Yes and no. Here, when the money flows through a different channel, the party ends up with a different center of gravity. It means some voices count more inside the party than they did before—and other voices count less.

These shifts raise a fundamental question: who ought to be in control of the party, anyway? In the paper we just published, we imagine three models of who should control a party:

1. The equality model: On this model, each party member should have equal influence over the direction of the party. If you think of the party as a democratic arena, this model is analogous to one-person-one-vote.

2. The elite-driven model: On this model, the parties are not democracies; they are more like firms, competing in the broader democratic arena. In this analogy, party elites are the executives; the donors are the shareholders; and ordinary voters are like consumers who can accept or reject what the elites are selling. This model has its roots in a Schumpeterian conception of democracy.

Neither of these models, we think, is adequate—either positively or normatively. We think parties both are, and should be, both internally democratic and actors in the broader democratic arena, selling their policies to the general public. As we discuss in the paper, we think there are good reasons to depart from the equality model, while not embracing the elite-driven model either. So we propose

3. The pluralist model: This hybrid model takes into account the party’s multi-layered role in our politics. On this model, the party stands in part for ordinary voters who make up the base of the party, in part for the party elites who run it, and in part for the activists in between—the party faithful, who knock on doors and show up at rallies and caucuses and provide much of the party’s energy.

The party faithful are much more heavily involved in the party than ordinary voters, but much less influential than the Koch brothers. One major worry we have about the shift from official parties to shadow parties is that the party faithful may get squeezed out, leaving us with a politics that is more centralized and broadcast-like. This kind of politics leaves little room for the vibrant, unruly, participatory sort of democracy that is driven by large numbers of people who feel strongly about their politics but don’t have an extra few million dollars lying around.

For more see the paper. Cross-posted on the Balkinization.

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A war within the Republican party?

 

Coauthored with Joseph Fishkin, University of Texas Law School

A recent story perfectly embodied the central puzzle in a paper that we recently published in the Supreme Court Review. The story tells about the war between the Koch brothers and the Republican National Committee over whose database of voter information will be used in 2016. It sounds a little arcane, but voter data is the lifeblood of any campaign: who is on your side, who do you need to persuade, who is a reliable voter, and where do they live? Keeping track of all this and providing the information to campaigns is a classic function of political parties—a function that is central, as Jack points out, to what parties do in the information age. In the past this function has been carried out by the official parties. But now the Koch brothers have built a database that is easier to use and well liked by campaigns. GOP leaders, however, are nervous about having such an important campaign instrument in the control of private actors rather than the formal party structure. The story, in short, is about the war between the official parties and what we call the shadow parties – the SuperPACs and nonprofits now playing an increasingly important role in the electoral process. These days the shadow parties are doing a lot more than taking out some ads. They are taking over major functions once reserved for the official parties.

Our article begins with McCutcheon v Federal Election Commission, which struck down the FECA’s caps on how much hard money in toto one donor could give to candidates and party committees in a given year. It quickly morphs into a rumination on the future of the party system. That’s because McCutcheon can only be understood against the deep shifts taking place in American politics.

By some measures, the parties are stronger than ever. Party identity is very strong, and the Democratic Party and the Republican Party are at the height of their power. Other measures suggest that the parties are losing their grip on politics to “outside groups,” which have taken over a startling array of core party functions. But these “outside groups” are deeply and durably aligned with one party or the other. They are run by consummate party insiders. That’s why we call them shadow parties. For reasons we discuss, the shadow parties aren’t lone wolves. They are deeply intertwined with the official parties and properly understood as part of what we call the “the party writ large” – the large network of donors, activists, and organizations that constitute the party.

The explosive growth of outside groups explains why many campaign-finance supporters saw a silver lining to Shaun McCutcheon’s suit. The crude version of the “silver lining” argument suggests that McCutcheon will shore up the parties against outside spenders. The more nuanced argument—and the emerging conventional wisdom in the field—is that McCutcheon will level the playing field between the official party leaders and the shadow parties by allowing donors to pour more money into the official party structure.

We are skeptical. It’s not that the hoped-for effect won’t exist. It will. Some funds that would have flowed to outside groups will seep back into the official party structure. But we think the effect will be modest. Moreover, the crude argument—pitting “outside” funders against “the parties”—fundamentally misdiagnoses the problem. The real problem with the growth of shadow parties has less to do with the “strength” or “weakness” of the official parties relative to outside groups and more to do with who exercises power within the parties writ large. What we are witnessing is not outside spenders pulling power away from the parties but an intraparty battle for the heart and soul of the party writ large.

That’s precisely why the database story is so interesting. The Koch brothers are part of the GOP writ large. This is an internecine war. Indeed, as the story makes clear, it’s not just money that is flowing away from the official parties toward the shadow parties; it’s talent and authority. We are beginning to witness a brain drain of sorts, with some of the most important and talented players in politics being housed in the shadow parties. It’s not surprising that the Koch brothers’ shadow party has created a better campaign tool than the RNC. They are running their organization with the funding, talent, and efficiency that we typically associate with the private sector. But there is a tradeoff there, and it’s a big one: private shadow party groups are beholden only to their donors, not to the rest of the party.

Although we see this battle as an intraparty fight, its likely outcome is one that “small-d” democrats ought to find disquieting. The parties have been important sites of pluralist competition. The shift toward shadow parties threatens to flatten the party structure and inhibit pluralist politics. Money isn’t just shifting from one place to another within the party writ large; it is shifting from one type of institution to another, quite different type of institution. Compared to the official parties, the shadow parties are more hierarchical and less porous. They are closed to most and controlled by few. We are especially concerned that the shift to the shadow parties will permanently squeeze out the party faithful—the activists and highly engaged citizens who serve as a bridge between everyday citizens and political elites—and largely eliminate their already-diminished role within the party writ large.

As we’ll discuss tomorrow, the shift toward shadow parties raises important questions not just about the future of American politics, but about who ought to control political parties. We’ll turn to that normative question in the next post.

Cross-posted on Balkinization.

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The Political Safeguards of Horizontal Federalism

Over at Balkinization, I’ve been blogging (here, here, here, and here) about the benefits associated with spillovers, which occur when one state’s policies affect citizens of another state. Most of those arguments have to do with my other field, federalism. But they are relevant to two debates in election law. First, to the extent that election law scholars are interested in the role that political parties play in safeguarding vertical federalism, a topic that has inspired great articles from both Larry Kramer and Jessica Bulman-Pozen, I speculate that political parties play an equally important role in safeguarding horizontal federalism. Second, to the extent that we are all worried about polarization and the “big sort,” interstate spillovers may provide a partial antidote to polarization’s worst excesses. That’s because they force all of us to live under someone else’s law. You might think that living under someone else’s law is a terrible thing because it violates the deep-seated democratic principle of self-rule. But democracy isn’t only about self-rule; it’s also about ruling together. Given our impulse to retreat into our all-too comfortable red or blue enclaves, it’s very useful for our worlds to collide now and then. Those collisions give us a chance to see how other people live, to live under someone else’s law, to try someone else’s policy on for size. Democracy, in short, requires us to do just what spillovers require us to do: Work it out. Sometimes we work it out directly. Sometimes we need a referee. Sometimes we just take our lumps and live under a policy we don’t like. And we do so for a simple reason: We’d rather live with other people than without them.

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Is it Possible to Be In Favor of a Right-to-Vote Amendment but Against Amending the Constitution? Yes.

The DNC Executive Committee has just endorsed the idea that we should amend the Constitution to add a right to vote. I’m entirely in favor of a constitutional right to vote. But I’m against amending the Constitution to add it. There are excellent scholars and organizations in favor of amendment, including Jaimie Raskin, Alex Keyssar, the Advancement Project, and FairVote. But I remain skeptical and have a new paper explaining why I fear that the amendment game is not worth the candle.

There are two stages for ensuring a robust right to vote: (1) amending the Constitution, and (2) enforcing that amendment. As to the first stage, if an amendment enshrining the right to vote looks anything like its cognates in the Constitution, it will be thinly described, maddeningly vague, and pushed forward by self-interested politicians. If the amendment takes this form, the benefits reformers and academics assert we’ll reap are anything but automatic. Once a vague guarantee is embedded in the Constitution (Stage 1), reformers will still have to turn to legislators and courts to get something done (Stage 2).

Making the text more concrete may make Stage 2 easier, but it will complicate efforts to pass the amendment in the first place. After all, if it were easy to enfranchise former felons or block voter ID rules or guarantee a well-administered election system or end partisan gerrymandering, we would presumably have done it already. It’s possible, of course, that reformers could aim for something more than vague language, either by writing their aims explicitly into the text or creating an amendment history so robust that everyone understands what the right embodies. On this view, reformers would build a big tent of supporters by linking the amendment to lots of different reforms.

The problem with this strategy is that it will also generate a big tent on the other side. Push for felon enfranchisement, and you’ll run up against the tough-on-crime lobby. Tempt progressives with a ban on voter ID and lose the support of many Republicans. Promise to end gerrymandering and lose the support of most incumbents. That’s why a vague textual guarantee is so tempting an option in Stage 1, even if it creates more work for Stage 2.

If I had a magic wand, I’d wave it in order to add the right to vote to the Constitution. As I noted in my paper, there are lots of reasons to value it. But magic wands are in short supply, as are the political resources needed to pass an amendment. Given the challenges involved in getting it passed and, more importantly, robustly enforced, it makes more sense to pour those resources into more discrete reform projects going forward.

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Justice Kennedy Channels John Hart Ely: Windsor’s Effort to Clear the Channels of Political Change

For the last few days, I’ve been blogging about a new paper of mine on Windsor v. United States over on Balkinization (here, here, and here). I offer a new spin on it, one that invokes Ely’s Democracy and Distrust and depicts Windsor as an effort to “clear the channels of political change.” You might find the posts interesting if you want to read more about what I call the “interlocking gears or rights and structure,” which help explain the many mysteries in the opinion, the democratic purposes federalism serves, and the ways in which Windsor can be understood as an Ely-like move. Or just think of this as an invitation to join those of us writing at the intersection of federalism and election law, including Jessica Bulman-Pozen and Franita Tolson. Come on in — the water’s warm…

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Nudging in the Right Direction: A Response to Bob Bauer

Authored by Heather Gerken, Wade Gibson, and Webb Lyons

Bob Bauer’s recent post on our “nondisclosure disclosure” proposal offers yet-another reminder why he was treated as an honorary member of the academic tribe long before he started teaching at Yale and NYU.  It’s not just because Bauer’s argument was smart and incisive.  It’s because his post embodies the best of scholarly values:  Bauer offers the most generous account of our proposal before criticizing it.  It seems almost churlish to respond given that Bauer was kind enough to suggest we’re taking campaign-finance reform in a new direction.  But his argument so cleanly and clearly sets up the central question about “soft law” reform like our own that we thought we’d offer our own take on the answer.

For those late to the conversation, in an editorial in the Washington Post, we suggest that any advertisement funded directly or indirectly by an organization that does not disclose its donors must acknowledge that fact with a simple and truthful disclaimer:  “This ad was paid for by ‘X,’ which does not disclose the identity of its donors.”   As Bob notes, because our proposal regulates the ad, not the organization, it helps solves what we called the “whack-a-mole” program – the dilemma Congress and the FEC face in keeping up with the emergence of new institutional players in each election cycle.

Bauer worries that that the government may be “effectively weighing in on the credibility of a political message.”  He asks whether there is “a material difference between the government mandating disclosure of facts, and the government inviting inferences in the absence of facts, in the First Amendment realm—particularly where the government is doing indirectly what it could, if it chose to do so, accomplish more directly by legislative mandate?”

We take Bauer’s concerns seriously and agree with him that it’s not enough for a state-mandated disclosure to be truthful for it to withstand scrutiny.  There’s a great example from a voting-rights case decided during the 1960s.  The Court invalidated a Louisiana law requiring that the photos of candidates appear on the ballot, recognizing it as a patent effort to invite voters to discriminate on the basis of race.  We’re especially grateful that Bauer has pushed on this point rather than let us simply invoke truth as a constitutional shield.  His prodding has made us think harder and frame our constitutional argument more precisely.

We still disagree with Bauer as to whether our proposal raises the First Amendment concerns he suggests, and here we think the doctrine is emphatically on our side.  The Court has made clear that transparency is an issue on which the government may provide voters information.  Citizens United, for instance, offered a ringing endorsement of transparency rules precisely because voters can and should find them useful.  If the government can mandate disclosure for these entities, then surely it can require entities to disclose the truthful fact of nondisclosure.  If the government can mandate disclaimers and “stand by your ad” rules, surely it can require entities to acknowledge when its donors aren’t standing by their ads.  Indeed, the fact that the government can mandate regulation in the first place is premised on the idea that it’s acceptable for citizens to have a view on transparency.  In light of that constitutional backdrop, we see little difference between this rule and other truthful nudges, like states’ routine practice of identifying which candidates are Democrats and Republicans on the ballot.

Bauer rightly notes that a lot depends on the background “architecture.” Many of the “Nudge” proposals, for instance, are enacted against a backdrop of pervasive government regulation, where the government must choose one default or another and the only real question is which is the right default.   It’s worth remembering, however, that our “nudge” would also be enacted against a backdrop of pervasive government regulation.  It’s a regime in which the government requires the vast majority of entities running political ads to disclose their donors.  When a voter watches an ad, in other words, he has had good reason to assume it’s been funded by transparent sources.  Our proposal simply alerts voters that this is not the case for ads being funded by dark money.  The government, then, is helping ensure that citizens don’t make a mistake.  You might even imagine an FDA analogy.  When consumers take a drug off the shelf, they assume that the drug has met FDA standards because the FDA pervasively subjects drugs to testing.  If the FDA were to exempt certain drugs from that regime, surely it would be constitutional for the FDA to require the manufacturers at least to acknowledge that fact.

Bauer worries about the government being “an active participant in political debates,” and rightly so.  But the government is no more or less an active participant in this debate here than it is when it mandates disclosures and disclaimers generally.  In each of these instances, as with our proposal, the government isn’t telling voters what to think.  It’s simply giving voters the tool to make up their own minds.  That’s precisely why the Supreme Court, which is deeply skeptical of government involvement in this arena, ruled 8 to 1 in favor of allowing government to provide citizens this important information. If our proposal works, then, it won’t be because the government is drawing an inference; it’s because voters are drawing one.

 

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The Presidential Commission on Election Administration — A New Model for Reform

I was lucky enough to be at the excellent APSA panel Rick Hasen organized on the President’s Commission on Election Administration (and unlucky enough to be staying at the fire-plagued Marriot). I though I’d say a few words about the former. For anyone interested, as am I, in election reform as a field of study, the Commission is especially interesting. Its structure and recommendations prompt at least two questions: Is this the future of election reform, and should we welcome it?

Reform is always hard. Election reform is even harder, on average. There are two unusual obstacles that are always at play for election reform. To begin, you don’t just have to get by the legislators beholden to interest groups; you have to get by the legislators’ own interests. The foxes are guarding this particular henhouse. That means that those who know the most about reform and care the most about it are often the legislators who oppose it.  Second, election reform is always second-order reform because it focuses on process rather than substance. I firmly believe that process shapes substance, but election reform is still one step removed from bread-and-butter issues like healthcare and jobs. That makes organizing harder.

In the face of these political tides running against reform, note how differently the President’s Commission looks than most reform commissions of the past.

First, while it’s bipartisan, it’s not you father’s bipartisan commission. Usually bipartisan commissions are headlined by high-profile former elected officials – the big names at the top of the political parties. This one is led by two lawyers with deep experience in the field and deep respect for one another. They aren’t above the fray, but – like all lawyers — they are trained to be in the fray without becoming enemies. As a result, they don’t mistake a political fight for a real one. Otherwise, the Commission is made up of election administrators and corporate CEO’s. They aren’t so much bipartisan or even nonpartisan as a-partisan.

Second, the commission is premised on a model that assumes that the levers of change are bureaucrats. Most election reform is aimed at getting attention of legislators (and usually federal ones at that). This report focuses almost entirely on election administrators. To be sure, some of its recommendations will require the participation of state legislators, but even those reforms are the type that election administrators would be requesting in the first place. The focus on election administrators is particularly intriguing. We often act as if election administrators are the objects of reform rather than the catalysts – as if change can only come if there is pressure from without, with outside groups or legislators making election administrators do the right thing. This report is largely premised on the idea that change can come from within, from those who work every day inside the system.

Third, note how the commission hopes to influence those bureaucrats. The focus here isn’t on grand bargains, but technocratic solutions. Moreover, it relies on soft law not hard law – on the effects best practices and base-lining have on professionals rather than on top-down legal mandates. And as I’ve often written, best practices and base lining turn out to be an excellent strategies for influencing professional peer groups.

Fourth, the Commission doesn’t rely on professional peer pressure alone to drive reform. It relies on dollars and cents. Sometimes I despair that reform wouldn’t happen even if Almighty God came down from on high and ordered it. But these days I have some faith in the Almighty Dollar. And the Commissions’ recommendations are built around the Almighty Dollar. The online registration proposal is a big cost saver, for instance. Pushing the feds to take the lead on certifying new machines will save local jurisdictions time and money as well. And the “tool kit” the Commission provides for election administrators are something most election administrators couldn’t afford to create for themselves and designed to help them spread their limited resources as far as possible. Election administrators are strapped for cash, especially as their HAVA money has basically run out. They are desperate for tools like these. This is thus a classic solution to problem of decentralization, where no individual jurisdiction can afford to create these tools but every jurisdiction needs them. The tool kit, in particular, follows the Field of Dreams model for reform: If you build it, they will come. You can get better administered elections just by giving states and localities better tools to administer them.

Finally, the commission isn’t announcing the need for ambitious, earth-shaking reform, but fixing what’s obviously broken. It’s improving the status quo without disturbing it. Deeply pragmatic and clear-eyed about what’s possible, the report is not the stuff of which many reformers’’ dreams are made.

Given that the Commission is not the stuff of which many reformers’ dreams are made, how should we think about it? While I don’t think that this model is going to displace the more traditional model – bipartisan commissions pursuing ambitious aims and offering grand bargains negotiated by party leaders – I do think the Commission is going to be part of a growing trend in election reform. I also think we should welcome it as a supplement to more traditional reform commissions. The Commission was pragmatic, problem-centered, and focused on modest ideas rather than grand bargains. The success of its recommendations will depend on bureaucratic pride rather than political coalitions, best practices rather than top-down legislation, soft law not hard law. And I think that’s a good thing. I recognize that some think that the Commission wasn’t ambitious enough, but I think the Commission was quite ambitious because it set about to achieve reform rather than just talk about it. That kind of approach may not make headlines, but it is likely to make headway.

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The VRAA and the Future of Voting Rights Enforcement

For those following today’s hearings, I have an editorial today in the National Journal.  It notes the continuities between the VRAA’s enforcement strategy and that used in other regulatory arenas, something I’ve written about in the past.  It also draws upon Ellen Katz’s great piece on Section 5 enforcement in South Carolina.

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65 Ways to Improve Our Democracy

Today the Bipartisan Policy Center’s Commission on Political Reform rolled out its recommendations and report today on strengthening American democracy.   Academics are usually on the outside looking in for such processes, but I was lucky enough to serve as one of the BPC’s 29 commissioners.  I left incredibly impressed with the spirit of cooperation and bipartisanship shown by all the members of the commission — particularly its chairs, Senators Lott, Snowe, and Daschle, Secretary Dan Glickman, and Governor Dick Kempthorne, who took a hands-on role in making the report happen and were engaged in the project from beginning to end.  As cynical as I am about such processes generally, I left this one feeling heartened.

You all should read the report, which contains no fewer than 65 recommendations for improving American democracy.  For the most contentious issues – the ones where we disagreed on the fundamentals – the Commission largely confined itself to proposals that were politically realistic and still likely to accomplish something.  For the issues on which we all agreed – especially those having to do with leadership and service – we tended to dream big.

Election law junkies will find much of interest in the report.  First, note that this is the second time in recent months that a commission that included prominent members of both parties endorsed early voting.  As I’ve said elsewhere, early voting is at the “sweet spot” of election reform.  It’s one of the rare examples where the so-called the “access/integrity tradeoff” isn’t a tradeoff.  Early voting makes it easier for people to vote, particularly working people.  By extending the voting process, it also helps reduce the pressures on election day that can lead to long lines.   But early voting also helps on the fraud side of the policymaking equation.  Voters crave convenience voting.  And early voting is a far superior alternative to the other, common form of convenience voting – absentee balloting.  Absentee voting, not in-person voting, is where there’s a real risk of fraud.  Early voting, then, is both secure and convenient, and it’s something that voters are quickly coming to expect.

Second, one of the freshest ideas in the report goes to the problem of primaries.  We all know what a problem low-turnout primaries are.  But there have been precious few new ideas about how to address it.  The Commission proposes creating the equivalent of a “Super Tuesday” for primaries – one day in June when all primaries would take place.  The aim of the proposal is clear – to focus the media and the parties’ turnout efforts and the attention of citizens on a single event in the hope of building better voting habits among our citizenry.  Although the proposal was addressed to the problem of turnout, it also helps solve a crucial problem for election administrators.  Elections are expensive.  The proliferation of primaries and election days drains election administrators of time and financial resources.  There’s no question that it will take some work to consolidate all primaries on a single day.  But the savings involved could be substantial.

Finally, the Commission put some time into thinking about what happens after all the ballots are cast.  The commissioners were acutely aware of the problems associated with recounts.  The report includes a variety of pragmatic, good-governance reforms that would lower the temperature for the recounts that will inevitably happen (at least they would reduce the number of things the parties can go to war over).  Perhaps the most important of these proposals were the ones aimed at reducing the number of provisional ballots and absentee ballots that that are uncounted on election day.  As an elections lawyer will tell you, these ballots are the ticking time bombs of the elections process.  I remember being in the Boiler Room for the Obama campaign in 2012.  For a moment, it looked as if the race might come down to Ohio, which had thousands and thousands of provisional ballots waiting to be counted.  As a member of the recount team, I briefly wondered whether I should tell my family I wouldn’t be seeing them for the next month as the campaigns were sure to litigate the status of each and every one.

I’ll just close by noting that while I don’t agree with every single proposal made by the commission, I am honored to have my name on the report.  It’s a serious report drafted by serious people.  More importantly, it’s aimed at deep and serious problems.  When I thought about whether to sign, I asked myself the question that political scientists routinely ask:  as opposed to what?  The proposals might not be my vision of the perfect.  But they are so far superior to the status quo that it would be great if even a fraction of them were implemented.  Here’s hoping.

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The Political Thriller Published by the Moritz College of Law

Serious empirical research rarely reads like a political thriller, but “The New Soft Money:  Outside Spending in Congressional Elections” — written by Dan Tokaji and Renata Strause* and published by Ohio State’s Moritz College of Law — is one of those rare exceptions.  Even a cynic about campaign-finance reform will find the details in this report to be hair-raising.  “The New Soft Money” doesn’t just describe how money influences campaigns and governance.  It also provides compelling, granular details about the transmission lines that have been erected between outside groups and the candidates and parties with whom they are not “coordinating.”  Many of those details will be familiar to political insiders, but they’ll be unnerving for everyone else.  The report provides compelling evidence of just how much things have changed since the early 2000s.

“The New Soft Money” offers a deep dive into the current state of outside spending.  The research is largely qualitative; Tokaji and Strause interviewed an impressive number of political insiders (candidates, political consultants, staffers, and the like) in order to find out how outside money moves through the system.  The report resembles the record amassed during the McConnell litigation, except in several respects it’s deeper and more detailed than what the Supreme Court relied on when it upheld the constitutionality of the bulk of McCain-Feingold.

This isn’t a report for true believers on either side of the issue.  Tokaji and Strause obviously have a view about reform, but they are very careful not to overstate their findings.  Reform advocates will be disappointed that the report insists that there’s no smoking gun evidence of money being traded for votes.  Those who argue that independent spending is just about individual speech rights will have to concede how profoundly outside money is shaping our politics.

You should read the report yourself, particularly the chapters detailing how outside groups “cooperate,” as Tokaji and Strause euphemistically put it, while avoiding the legal prohibitions on coordination.  I was struck both by how hidden some of these interactions are and by how open, even brazen the rest are.

Networks facilitate the hidden cooperation between candidates and outside donors.  Everyone knows everyone else in politics, and most of the “everyones” are sophisticated enough to be careful about the game they are playing on the coordination front.  As a result, as one of the interviewees said, “you hear things” even if no one from the campaign ever speaks directly to an outside group.  Other times, messages are deliberately passed by a “friend of a friend of a friend,” to quote another insider.

While much of the networking is hidden from view, political operatives also use public tools – the mechanisms and strategies that we often bless as “transparent” – to tell outside spenders how best to support a campaign.  Savvy campaign heads become “the conductor” as they signal their messaging strategy in surprisingly public ways.  Some issue press releases they know that the media won’t pick up, but outside groups will.  Others deliberately use journalists to send “smoke signals” to outsider funders.  B-roll footage (high-resolution photos and clips) are embedded into the website for outside groups to find.  Donor lists are shared before they are disclosed to the FEC in order to give outside groups a leg-up on fundraising.  Information also runs from the outside groups to the candidates.  Vote alerts and scorecards – long a tool of public-interest groups – have become mechanisms for putting pressure on politicians.  If outside groups are scoring this or that vote, politicians would be foolish not to pay attention.

Political scientists tend to prefer hard, quantitative data to the type of qualitative data found in this report, often with good reason.  But we shouldn’t underestimate the importance of Tokaji and Strause’s findings.  First, while political scientists can map networks, quantify spending, and run large regressions using big data sets, they can’t provide the granular and disturbing detail that Strause and Tokaji offer about how things actually work in practice.    Second, it helps a lot that Tokaji and Strause are both lawyers housed in an academic environment.  They bring an academics’ care to their research, but they also possess the lawyer’s keen sense of what matters to judges and why.  Perhaps that’s why this report bears a noteworthy resemblance to the record on which the Supreme Court relied in upholding McCain-Feingold (which was also prepared in large part by lawyers).  If anyone can change Justice Kennedy’s mind about the distinction he drew between “ingratiation and access,” on the one hand, and “corruption,” on the other, it’s a report like this one.  It’s hard to imagine that the world Strause and Tokaji describe looks anything like the one Justice Kennedy contemplated when he wrote Citizens United.

The truth is, the report changed my mind as well and thereby provided yet another reason why qualitative evidence matters.  I have heard countless officials tell me how much they fear the threat of outside spending, particularly during a primary.  I’ve always taken those complaints with a grain of salt.  Politicians are, after all, among the most risk-averse creatures I know, and the numbers don’t always back up their concerns (incumbents don’t lose that often, and outside spending doesn’t dominate every race).  But the hard data can be misleading.  When you read through the report, you realize pretty quickly that outside groups don’t have to take down that many incumbents or spend in that many primaries to influence politicians.    Outside groups just have to do it every now and then for their threat to be a serious one.  Those episodic interventions — plus scorecards and smoke signals and “press releases” that aren’t for the press and b-rolls tucked away on campaign websites – are all you really need to cement the ties between funders on the outside and policymakers on the inside.  Whether that’s enough to convince you that the system is in need of reform depends very much on your normative commitments.  But facts matter, too, and the facts in this report are important no matter which side of this fight you are on.

 

*In the interest of full disclosure, I should note that I like Dan and Renata immensely (I defy you to find someone in the academy who doesn’t).  I also encouraged them both to take part in this project (which turned out to be even more important than I’d thought). 

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Federalism and Election Law

Those interested in the intersection between election law and federalism might want to take a look at a new Feature in the Yale Law Journal, which I blog about here.  Entitled “Federalism as the New Nationalism,” it marks the emergence of a nationalist school of federalism.  A lot of the work in the Feature centers on the relationship between state and national politics and thus may be of interest to election-law junkies.

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