00:00 -

00:01 - I want to just say what an honor and a privilege it is to be

00:04 - working with the National Constitution Center again.

00:07 - And it's a relationship that's been wonderful for the Federal

00:10 - Judicial Center as well as for all of the people the NCC

00:14 - serves.

00:15 - I'd like to follow up on where we started this morning and

00:20 - before we get into the books that my two colleagues here have

00:23 - written and what they had to say reflect for just a minute about

00:27 - Justice Scalia because regardless of where one is on

00:32 - the political spectrum or regardless of one's view of what

00:35 - the courts should do or ought to be. I think it's pretty much a

00:39 - consensus that Justice Scalia was an immensely influential and

00:43 - consequential member of the Supreme Court.

00:46 - And so I'd like to start by just asking each of you if you have a

00:51 - reflection about that and if you want to tie it to election law

00:54 - that's great.

00:54 - And if not that's fine too.

00:56 - So lets start with Mr. Foley.

00:58 - Thank you.

01:00 - It's a great honor to be apart of this conversation. I was

01:04 - fortunate enough to meet as you have while working for justice

01:07 - department at the U.S. Supreme Court in their chambers were

01:10 - adjacent to each other.

01:13 - And so I would pass them in the hall and he was always

01:15 - incredibly jovial and friendly to everybody in the building.

01:20 - But one privilege that we had was we got to take other

01:23 - justices to lunch.

01:25 - So the four of us who work for Justice Blackmun took Justice

01:29 - Scalia for lunch and the topic ended up being music as he was

01:32 - this lover of music. And it was during the time where the

01:37 - movement to record music on original instruments was really

01:42 - big so you'd record Bach or Beethoven on original

01:44 - instruments instead of modern instruments and I just remember

01:48 - how much fun it was talking about that compared to original

01:51 - intent to constitutional interpretation back and forth

01:54 - about whether it was music in law the same or different.

01:58 - We just had a wonderful time.

02:00 - So I'll always cherish that memory.

02:03 - Oh and then I get back to.

02:05 - I happened to mention a book that talked about recordings

02:10 - that you could buy and get back to my desk and working away and

02:14 - suddenly an email comes in on the system saying you know Ned

02:18 - can you remind me the name of that book?

02:21 - Nino you know mean he was just that personable he just called

02:24 - himself Nino so I'll cherish that forever.

02:27 - Thank you.

02:29 - It's a pleasure to be here and to have the opportunity to talk

02:32 - about these election issues.

02:33 - Let me say a brief for it about Justice Scalia and election law.

02:38 - I had just started a project I was contemplating a book on

02:42 - Justice Scalia.

02:43 - So I been reading much of his writings and I think that I told

02:50 - this to a reporter this morning there really is no one on the

02:52 - Supreme Court who can replace him in terms of his outsized

02:56 - personality and I think his influence as a public

03:00 - intellectual.

03:01 - In a way putting forward views about the Constitution views

03:04 - about interpreting statutes that whether you agreed with him or

03:08 - you didn't he was a forceful advocate and it was clear that

03:11 - he was an American patriot loved the Constitution loved the

03:14 - country and was pushing things in the direction that where he

03:18 - thought things should go.

03:19 - Having said that I would say that Justice Scalia's views on

03:24 - election law were quite troubling to me.

03:27 - And I'll just give a few examples.

03:29 - Although the Supreme Court decided the Citizens United case

03:32 - which I imagine will talk about a little later which said that

03:34 - corporations have a First Amendment right to spend

03:37 - unlimited sums independently in elections.

03:40 - Justice Scalia was of the view that the First Amendment also

03:44 - allowed individuals to give unlimited contributions directly

03:47 - to candidates.

03:49 - On the Voting Rights Act, while Justice Scalia was in the

03:52 - majority in the Shelby County vs. Holder case which struck

03:56 - down a key portion of the Voting Rights Act.

03:58 - He was also a justice who believed that the other parts

04:04 - the Voting Rights Act that remained particularly Section 2

04:06 - the Voting Rights Act should be read in a narrow way to not

04:09 - apply to districting questions which would allow for a majority

04:14 - of voters to be able to completely subsume the the power

04:18 - of minorities in an area.

04:20 - And in the area of voter identification laws which is one

04:25 - of the most controversial areas that the Supreme Court

04:27 - considered in a 2007 case called Crawford vs. Marion County while

04:33 - the Supreme Court held that voter identification laws did

04:37 - not violate the equal protection clause there was a cluster of

04:40 - three justices led by Justice Stevens who said that if there

04:43 - were voters who faced particular burdens they should be exempt

04:48 - from these laws.

04:48 - Think of someone like a group of homeless voters who would have

04:51 - trouble getting photo identification.

04:53 - Justice Scalia wrote an opinion for three justices for himself

04:56 - Justice Alito and Justice Thomas who took the position that if

05:01 - most voters would not be burdened by a voter ID law then

05:05 - a voter ID law is just fine even if there were some voters who

05:09 - would face tremendous burdens.

05:11 - So as we think about the next justice is to replace Justice

05:14 - Scalia.

05:15 - When someone says they want another justice like Justice

05:17 - Scalia I think that would have a lot of implications for our

05:21 - democracy and our elections.

05:22 - And so thinking about his legacy you can hold a position as I do

05:26 - that he was a great justice but also a justice who was misguided

05:30 - on certain issues related to law and democracy.

05:32 - Thank you.

05:34 - And I'm going to say something completely nonpartisan.

05:37 - I'm a fan of good writing and Justice Scalia I think was a

05:41 - great writer.

05:43 - Parko Margulis going to be part of my vocabulary for the rest of

05:46 - my life.

05:47 - That was the phrase he used in one of his dissents last year.

05:51 - And I just love that.

05:53 - So I will I will leave it at that and I did have the

05:56 - privilege of meeting him and I share Professor Folies view.

05:59 - He was an outsized personality and somebody you'd never ever

06:03 - forget having met so let's get to the business at hand and

06:08 - you've both written your books actually touch touch on

06:11 - different subjects.

06:14 - Professor Foley you talk about disputed elections and problems

06:18 - with the casting and counting of ballots and what we've done to

06:21 - resolve those issues or not.

06:23 - Professor Hasen and you've talked about campaign financing

06:26 - in your book and how that affects democracy but there's a

06:30 - there's a common thread which is the legitimacy of our elections.

06:34 - You both are concerned ultimately that we have

06:37 - legitimate elections that people have faith in the process.

06:42 - So Professor Foley why don't we start with you what prompted you

06:45 - to write this book and what do you think are the main takeaways

06:48 - from the history that you've laid out.

06:52 - I actually had a very different plan and I'm not a historian by

06:57 - training I'm a law professor and an assignment that I gave myself

07:02 - was to look around the country at all 50 states see what the

07:06 - best practices were among the 50 states regarding recounts and

07:10 - resolution of disputed elections and gleaned from those best

07:13 - practices models for the future going forward how we how the 50

07:18 - states could do better in the future.

07:20 - And starting that work I quickly became of the belief that from

07:27 - justice to the subject you had to go back historical and as a

07:32 - lawyer I'm trained to only go back as far as the most recent

07:36 - precedent. But as I kept going farther back in time all the way

07:48 - to the founding.

07:50 - And came away with the conculsion that the difficulty

07:53 - our country had 2000 disputed presidential election and also

07:57 - had back in 1876 and I have had with various gubernatorial and

08:04 - U.S. Senate elections goes back to the founding. Choices made

08:09 - and issues over time of our founding history project as a

08:16 - best practice survey and has to do with legitimacy of the

08:21 - takeaway is that our our democracy is evolving has been

08:25 - evolving since the founding on this issue and others it needs

08:29 - to continue to evolve in the future.

08:32 - Wasn't all their prepackaged at the beginning that we somehow

08:35 - have to just implement what they did. We have to grow our

08:38 - democracy our own way.

08:39 - Right but we've really struggled to figure out what what to do to

08:44 - ensure the legitimacy of the casting and counting of ballots

08:48 - and because we have a federal system we have we have 50

08:50 - different solutions at least and sometimes more than that when

08:54 - when when within states they give local authorities the

08:57 - ability to decide how to how to do ballots and they have also

09:01 - been there's been a lot of evolution just in terms of the

09:05 - technology.

09:05 - I mean we didn't we didn't even have ballots that were produced

09:09 - by the government for a long time.

09:11 - They were they were they were created by folks on the ground

09:14 - and in various forms and I was fascinated by all these cases

09:18 - where ballots got rejected because the name of the

09:20 - candidate was misspelled by the people who made the ballot.

09:24 - It had nothing to do with the voter.

09:27 - But I guess do you think we've moved forward in terms of the

09:32 - the things that ought to concern us most deeply?

09:34 - In other words the fraud and the violence that the kinds of

09:41 - pressures on the process that that really cast a lot of these

09:45 - early elections into doubt.

09:47 - Yes.

09:47 - So the good news take away from the history that I looked at is

09:50 - that the 20th century on balance was much better than the 19th

09:54 - century in terms of the handling these close contested elections.

09:59 - I was really quite surprised to find how many governor elections

10:05 - around the country in the 19th century did end up in violence

10:08 - bloodshed real civil strife.

10:11 - And the reason was that in the 19th century the legislature of

10:16 - the state retained the power to decide which candidate had won

10:21 - the votes when there was the ballot counting dispute.

10:23 - But the legislature was the institution controlled by one

10:26 - political party.

10:27 - So the losing side always thought that it was rigged.

10:31 - Not always but quite frequently thought that the election had

10:34 - been stolen by the political party in power and they didn't

10:38 - want to take that lightly.

10:39 - So they sort of form a citizens militia to fight for control

10:43 - against the the official militia of the government.

10:46 - Both sides would descend on the state house trying to wrest

10:49 - political power over the governor's race.

10:52 - And so you know we had here in Pennsylvania in 1838 there was

10:56 - the buckshot war which I didn't know about which was a very ugly

11:00 - scenario in which the incumbent governor wanted to seize retain

11:05 - power and was willing to manipulate the vote count in his

11:09 - in his favor and it was he ordered the militia to fire on

11:13 - his opponents and I guess to the credit of the general who was in

11:17 - charge of the militia a guy named Patterson refused to

11:20 - accept that order.

11:21 - Normally we like to think of the military as obeying the commands

11:25 - of the civilian in control right.

11:27 - But here the governor wanted the military to shoot political

11:31 - opponents and he refused to do that in the midst of that ugly

11:36 - episode.

11:36 - So that was right you know right here.

11:39 - Right here in the other one that stood out to me was something of

11:44 - a civil war buff was the one in Maine with the Joshua

11:47 - Chamberlain you want to say a little bit about that.

11:50 - Yes.

11:50 - This is in 1879 in any way the exact same pattern just moved

11:56 - from Pennsylvania in the 1930s to Maine in 1870 as an incumbent

12:01 - and it was a different political party with the same desire to

12:04 - control.

12:05 - So you had an incumbent governor wanting to retain power.

12:09 - It involved again a pretext that there had been misspelling of

12:13 - the names of the candidates.

12:16 - And they used that as a kind of a fig leaf to to abuse the

12:19 - counting process in favor of the incumbent party.

12:23 - The Supreme Court of Maine actually ordered the incumbent

12:28 - to step down because the other side won and the incumbent

12:32 - governor refused to obey the judicial decree of the Maine

12:36 - Supreme Court.

12:38 - Very similar situation in terms of a general rising to the

12:43 - occasion.

12:44 - Joshua Chamberlain had been a civil war hero at the Battle of

12:48 - Gettysburg and he had been installed as the head of the

12:52 - state militia and the incumbent governor wanted Chamberlain to

12:56 - do his bidding and he refused.

12:59 - He insisted that the Supreme Court have get its way.

13:03 - The case went back to the Supreme Court for second opinion

13:05 - once again the Supreme Court of Maine insists that the other

13:08 - party is won and that the governor has to step down at

13:12 - some point.

13:14 - Troops loyal to the incumbent governor are sort of a cost

13:17 - Chamberlain where he's residing and you know he he bears his

13:22 - chest and he says you know the southerners wouldn't kill you

13:26 - didn't kill me if you my fellow citizens from Maine are willing

13:29 - to do it.

13:30 - Well that I'll be that way.

13:32 - And in shame they can't you know they withdraw.

13:36 - And so Chamberlain ends up being the hero at the moment.

13:39 - And ultimately the rule of law prevails.

13:43 - The Supreme Court of Maine decree is enforced but it was a

13:47 - very dicey moment.

13:49 - Well there's a couple other things in the history.

13:52 - I mean of course the 1876 presidential election which has

13:55 - gotten a fair bit of attention that was Hayes Tilden election

13:59 - and I guess the common law history is that the votes went

14:04 - to Hayes in exchange for the troops being withdrawn from the

14:07 - south.

14:08 - But you also talked about I mean it's something I had never heard

14:12 - about in my entire life that the theft of the New York Senate

14:16 - just again I think would be interesting to for folks to hear

14:19 - a little bit about that just just how brazen that that was.

14:23 - So this this was in the 1890's a period of hyper polarization.

14:27 - You know we live in today's era where the parties are just

14:31 - constantly at others and if you go back to the 1980s and 90s

14:35 - that was another period of intense polarization and it

14:39 - plays out in these disputes.

14:41 - And in New York State there the Democrats at the time want to

14:48 - control the governorship and the two branches or the two chambers

14:52 - of the state legislature because they really want a political

14:55 - power and they get the governorship they get the lower

14:59 - house but they don't get the Senate but they're going to

15:03 - figure out a way to steal the Senate.

15:05 - And there are three disputed seats.

15:08 - And once again there some pretext and they there's a kind

15:15 - of ugly 4-3 split on the on the highest court of New York, the

15:19 - New York Court of Appeals over one of these pretextual claims.

15:24 - The other one is so brazen that the Court of Appeals won't go

15:28 - along with it.

15:28 - And so but that the hey the governor won't take no for an

15:34 - answer.

15:36 - And once again they attempt to defy the judicial decree that

15:42 - orders them to count the ballots that would mean that they lose

15:45 - this critical vote.

15:48 - Here they're not willing to do so brazenly.

15:50 - So what they do is they they sort of a complicated technical

15:56 - story.

15:56 - But the bottom line is they they sequestered the authentic

16:00 - certificate that would have been counted and fourth and they

16:06 - manipulated it in a kind of nefarious way.

16:09 - And they forced the counting of the votes that the court had

16:14 - asked not to be counted and they managed to sort of through

16:18 - stealth of night steal the one document and replace it with the

16:21 - other kind of thing.

16:23 - When this comes to light it turns out the deputy attorney

16:26 - general for the state of New York is the one behind this

16:28 - mendacity and he's awarded with a seat on that Court of Appeals

16:34 - the highest court of New York as a result of his mendacity.

16:38 - When that's all come to light New York is outraged and a good

16:42 - story in a bipartisan way.

16:44 - And ultimately they hold him in contempt of court.

16:48 - They hold three other people in contempt of court.

16:50 - High officials.

16:51 - And but it's a little too late for that one election.

16:55 - The theft is successful and only about two years later does it

16:58 - come to light just how awful a story it was.

17:01 - So so we have a lot of dirty laundry in our in our electoral

17:05 - history.

17:06 - I want to ask you about two other things.

17:08 - Before I turn to Professor Hasen you cite a good example when it

17:12 - kind of goes to your thoughts in the book about how we might fix

17:16 - this problem going forward and you talk about that the

17:18 - Minnesota Senate race in 2008.

17:21 - That was the one where Al Franken gave up his job on

17:25 - Saturday Night Live and decided that he wanted to be a senator.

17:29 - So you point out that that was actually a very positive process

17:35 - that had had some earmarks that would be things that we'd want

17:39 - to replicate going forward.

17:41 - No that's exactly right.

17:43 - And what Minnesota has done this now for two major elections the

17:48 - 2008 U.S. Senate election that that Franken did win as a result

17:52 - of the judicial decree.

17:55 - Also a 1962 governor's race where they used essentially the

17:58 - same model.

17:59 - And what that model is a three judge panel specially appointed

18:04 - for the ballot counting dispute. It as one Democrat one

18:08 - Republican and one person who's guaranteed to be neutral and

18:12 - they were able to do this in 2008 because Jesse Ventura had

18:17 - been the governor of Minnesota and he had been an independent

18:20 - candidate neither Democrat or Republican.

18:22 - And so when they created the three judge panel for the

18:25 - disputed Senate seat they the miniature they had one

18:28 - Democratic judge one republican judge and one judge who had been

18:31 - appointed to the bench by Jesse Ventura.

18:33 - So they called it the tri partisan panel because it wasn't

18:36 - just bipartisan.

18:37 - It came from all three different backgrounds.

18:41 - And that panel ended up being unanimous in its rulings as did

18:45 - the 1962 court.

18:46 - And it seems based on this historical analysis that that's

18:49 - about the best we can do as humanity to come up with a fair

18:54 - tribunal in their words.

18:56 - Both candidates want to see somebody on the on the body that

19:00 - is kind of protecting their interests.

19:02 - If you're a Democrat you want to know that there's a Democratic

19:04 - judge on the body if you're a Republican I there's a

19:07 - Republican judge you hope that they're fair minded judges.

19:10 - But your team is represented but ultimately we need a neutral

19:14 - arbiter and a tie breaking vote in this case.

19:17 - And you propose having something like that more institutionalized

19:22 - at least at the federal level?

19:23 - Yeah and the interesting thing again going back on you're in in

19:27 - 1792 there was a dispute for the governor of New York John Jay

19:31 - was running for governor.

19:34 - And it was funny he was willing to step down from being the

19:36 - first chief justice of the United States to run for

19:39 - governor of New York which tells you what the relative importance

19:42 - of those two jobs were at the time.

19:45 - And James Kent a revered figure of American law said hey we need

19:51 - a tribunal of this nature.

19:53 - And the point was they didn't anticipate these disputes

19:57 - because they didn't know about gubernatorial elections that

20:00 - they'd never, governors in the colonies were appointed and they

20:04 - didn't know how these high stakes election would be

20:06 - affected by partisan politics.

20:07 - They had hoped to avoid parties.

20:09 - Well we have parties and we have high stakes elections.

20:12 - We needed the institutions.

20:13 - 225 years later we're still trying to figure this out.

20:16 - So the last thing I want to ask you before we turn to Professor

20:19 - Hasen.

20:21 - You have an interesting take on Bush v. Gore at least it was

20:24 - interesting to me that I hadn't actually ever seen that take

20:28 - before and correct me if I'm misstating it but you actually

20:33 - think that the court did something it needed to do to

20:37 - prevent a violation of equal protection and due process and

20:42 - that the problem really lay more in how the optics were managed

20:45 - so that it left a question of legitimacy.

20:49 - Right.

20:49 - I think it's important remember there's two components to the

20:52 - Bush v. Gore decision.

20:55 - The first component was the use of the 14th Amendment by the

21:00 - U.S. Supreme Court to say that if state institutions manipulate

21:05 - the counting of ballots in an improper way that does violate

21:09 - the federal constitution and that there is a federal remedy

21:12 - for that.

21:13 - And that was actually a 7-2 vote essentially on the U.S. Supreme

21:17 - Court with Justice Breyer and Justice Souter essentially

21:21 - going.

21:21 - They didn't sign the opinion but in their own separate dissents

21:24 - they sort of acknowledged the importance of the 14th Amendment

21:27 - principle at stake.

21:29 - Where the court split 5-4 in a way that's much more

21:32 - controversial and appropriately controversial was having

21:36 - identified the 14th Amendment violation the remedy of the five

21:40 - justice the majority was not to permit any further recount to

21:44 - basically stop the process and say the time has run out.

21:47 - And I think it's important to distinguish the two elements.

21:50 - And with respect to the first element I think you know looking

21:54 - at the past and trying to project into the future I think

21:56 - that 14th Amendment holding will have purchase in lots of races

22:01 - all around the country mayors races, city council races to

22:06 - protect the integrity of the process and in fact again I

22:08 - didn't realize this but but that 7-2 aspect of Bush v. Gore is a

22:14 - vindication of a dissent written in 1900 a century earlier by the

22:20 - great dissenter John Marshall Harlan.

22:22 - He was the dissenter of Plessy v. Ferguson.

22:24 - And of course he gets vindicated in Brown v. Board of Education

22:27 - on that important topic.

22:29 - Well and 1900 he said the wrongful manipulation of vote

22:35 - counting is a crime against democracy that the 14th

22:39 - Amendment exists to protect against.

22:42 - And he didn't prevail in that case but he prevailed 100 years

22:46 - later in that first element of Bush v. Gore.

22:49 - Ok.

22:49 - We'll come back to this but I want to make sure we hear from

22:53 - Professor Hasen so you wrote a book about campaign finance and

22:57 - what what motivated you to do that and what's what is the

23:01 - major takeaway that you have.

23:03 - Sure.

23:04 - And when I was working on the book one of my colleagues at UC

23:08 - Irvine asked me up who is your audience which is a great

23:11 - question when you're running a book you're writing it for?

23:13 - And I jokingly said I'm writing it for Justice Kagan just for

23:17 - her.

23:17 - And so let me just explain my thinking.

23:22 - This year actually last month marks the 40th anniversary of a

23:25 - case called Buckley v. Valeo which is a case that upheld part

23:30 - that struck down parts of a post Watergate campaign finance law

23:33 - but the Supreme Court that Congress passed and the Supreme

23:36 - Court reviewed the Buckley case.

23:39 - And Buckley much more than Citizens United which has gotten

23:42 - a lot more attention is a case that has set us on the wrong

23:44 - path in thinking about money and politics now for 40 years.

23:48 - Basically Buckley sets up a kind of contest for all campaign

23:54 - finance laws between First Amendment rights of free speech

23:57 - and association on the one hand which are implicated when people

24:00 - want to spend money on elections. And the interest in

24:04 - corruption or the appearance of corruption on the other. And

24:07 - corruption can mean lots of things to lots of people.

24:09 - But with the Supreme Court defined corruption to mean it's

24:12 - something like bribery or something akin to undue

24:15 - influence.

24:17 - And so for years the Supreme Court's opinions have moved like

24:20 - a pendulum back and forth between upholding limits and

24:22 - striking down limits as the different justices on the court

24:25 - have viewed the question of corruption.

24:27 - And in Citizens United which comes in 2010 the Supreme Court

24:31 - says independent spending even by a corporation cannot corrupt

24:36 - the political process.

24:37 - And this often gets a laugh from audiences cannot cause the

24:41 - public to lose confidence in the fairness of the election process

24:43 - kind of create a minute here.

24:46 - The appearance of corruption.

24:47 - And so my book is argues that in Buckley the court made a

24:50 - fundamental mistake in rejecting a different interests that

24:53 - should be balanced with the very important first amendment

24:55 - question and that the interest in political equality.

24:58 - The court said that trying to balance the First Amendment

25:02 - against political equality was impermissible that they're

25:04 - trying to level the playing field is wholly foreign to the

25:07 - First Amendment and the argument I make in my book is that a new

25:10 - Supreme Court.

25:10 - I wrote the last chapter of the book really didn't take a genius

25:14 - to see that there was going to be change at the Supreme Court

25:17 - that when we get a new Supreme Court if it is a progressive

25:20 - Supreme Court with more Justice Kagan's that that balance might

25:23 - be struck differently that the court might recognize that we

25:26 - should not have a democracy in which those with the greatest

25:29 - economic power are able to translate their economic power

25:32 - into political power and that this new balance needs to be

25:36 - considered in the whole book is an attempt to justify a new

25:39 - balance that would allow for more limits on money in politics

25:43 - to help assure the kind of one person one vote views that we

25:46 - hold in other parts of our democracy and put that on the

25:49 - money in politics side.

25:50 - Ok so so just in terms of judicial process and this is a

25:54 - question I get all the time we do public education.

25:57 - So the court says in Buckley that political equality is not

26:02 - on the table does it doesn't matter.

26:04 - From a technical standpoint that wasn't the holding of the case

26:07 - the holding of the case with something else.

26:08 - But they kind of dismissed the the whole notion that political

26:11 - quality matters and to go where you want to go and where you're

26:14 - talking about in your book the court would have to say well

26:17 - actually we didn't really mean that or were that was wrong.

26:20 - You know and there certainly is precedent for the court making

26:24 - those kinds of acknowledgements because we just heard usually

26:26 - it's like 100 years later.

26:28 - So so in terms of legitimacy of the court as an institution.

26:33 - How do we how do we justify doing that?

26:36 - Well I'd say a few things.

26:37 - First the court not only said that in Buckley the court has

26:40 - repeated at least four other times including in Citizens

26:42 - United.

26:43 - So it's very well established.

26:45 - Now there's two ways that the court could go if the court

26:47 - accepted my argument.

26:48 - One way is what I would call subterfuge and the court's

26:51 - already done that.

26:51 - There was a 1990 case called Austin v. Michigan Chamber of

26:54 - Commerce which the Supreme Court explicitly overrules in the

26:59 - Citizens United case in which Justice Marshall writing an

27:02 - opinion for the Supreme Court said you could limit the ability

27:05 - of corporations to spend money in elections.

27:08 - Maybe you could do it for a quid pro quo corruption reasons.

27:11 - But there's what Justice Marshall called a different type

27:14 - of corruption which he defined as the corrosive and distorting

27:17 - effects of immense aggregations of wealth accumulated with the

27:21 - corporate form that have little or no support to or little

27:26 - correlation to the public support for the corporations

27:28 - ideas.

27:28 - Those are a lot of words but what it essentially meant was

27:31 - there's a problem with corporations being able to spend

27:34 - disproportionately in elections when it doesn't reflect public

27:38 - will.

27:39 - That was called corruption but years later we finally got

27:43 - Justice Marshall's clerk who was now the president of Cornell

27:46 - University, Elizabeth Garrett, to admit that Justice Marshall

27:49 - really was trying to sneak in the politically quality

27:52 - rationale.

27:53 - But if he had said that he would have lost his majority.

27:55 - And so he he he framed it that way.

27:57 - So I could certainly see a new Supreme Court reviving Austin or

28:01 - say or picking up another interest such as the interest

28:04 - that Dean Robert Post to the Eyles talked about election

28:06 - integrity or read the word corruption rapaciously.

28:09 - There are many ways that the court can engage in what I would

28:12 - call subterfuge to actually push equality forward without

28:16 - actually saying it.

28:17 - My preferred view is judicial candor and judicial honesty for

28:21 - the court to say we made a mistake.

28:23 - Forty years ago we repeatedly made a mistake and now we need

28:26 - to face the difficult question do we want to allow the top 100

28:31 - donors to our presidential campaign to spend more than the

28:37 - bottom two million donors.

28:38 - That's what we have right now in this election.

28:40 - That is a threat to our democracy.

28:42 - We were wrong 40 years ago.

28:44 - And I think judicial Cantor could actually increase the

28:47 - legitimacy of the court rather than hiding behind a subterfuge

28:50 - of pretending that everything is you know all the opinions jell

28:53 - together.

28:53 - Two follow ups to that so one of the points you make in your book

28:57 - is that both parties have been complicit that it's not just

29:02 - Republicans who get money from the Koch brothers it's Democrats

29:06 - who get money from labor unions and there's there's a whole

29:09 - structure of the two major parties depending on the current

29:14 - system.

29:15 - So where does the motivation to provide this kind of change come

29:18 - from.

29:19 - Well I do think that if you look at the current system there's

29:22 - probably more large money coming on the Republican side but I

29:25 - expect over time that would somewhat change because

29:29 - Democrats even though they professed disagreement with

29:32 - assistance that they're going to have to play by the rules as

29:35 - they are.

29:35 - So where does that come from.

29:37 - I think what's going to happen is that you know if you look at

29:41 - the candidacy of Bernie Sanders you look at the candidacy of

29:43 - Donald Trump.

29:44 - They may look like they don't have a lot in common but they

29:46 - have a kind of populism in common and there is a very much

29:49 - a feeling that the wealthy have too much influence and that

29:55 - comes across when Donald Trump says I'm self funding my

29:57 - campaign that comes across when Bernie Sanders.

30:00 - Every time he opens his mouth talks about the corrupt campaign

30:02 - finances.

30:03 - So there's a real resonance and if we're not looking at the

30:05 - elite level but we're looking at the level of just the regular

30:09 - population Democrats Republicans independents all think that

30:12 - Citizens United is wrong and that our current money in

30:14 - politics system is wrong.

30:15 - So what I what I would expect to happen is if we get a new

30:19 - progressive Supreme Court there will be the city of Cambridge or

30:23 - the city of Berkeley or the state of California will be some

30:25 - progressive place that will pass some new spending limit.

30:28 - It will get challenged.

30:29 - The case will make its way up to the Supreme Court.

30:31 - The Supreme Court will have a chance to open things up.

30:34 - I don't expect we'll get a change tomorrow in Congress even

30:38 - if the Supreme Court changed but I could see things working their

30:41 - way up more from the state local level from the grassroots and we

30:44 - actually could see change over the next.

30:46 - If you're thinking about this as a generation over the next 10 to

30:49 - 20 years I think we could start to see positive change.

30:52 - One of the one of the cases that really interests me on the

30:55 - Supreme Court's docket this term is the case involving the

30:58 - governor of Virginia Governor McDonnell who was convicted of

31:04 - corruption and one of the one of the issues that was raised in

31:07 - the petition to the Supreme Court was this is corruption

31:10 - being defined too broadly.

31:13 - He was basically the corruption can consisted of giving special

31:16 - treatment to a big donor.

31:20 - Now that the end is not clear where that case is going given

31:24 - given Justice Scalia's passing but what do you think of that is

31:27 - that case one of the cases where were these issues could be teed

31:30 - up.

31:32 - Well I don't think this case will be a case where the court

31:35 - will do much to change corruption.

31:37 - But I do think you're right that Justice Scalia was really a

31:41 - leader on this question.

31:43 - So if you have a private system of public private system of

31:47 - financing elections where public officials can take large

31:51 - contributions can benefit from large contributions and can take

31:54 - gifts then it creates a fundamental problem and let me

31:59 - point to one of Justice Scalia's older opinions as a case called

32:01 - Sundheim and growers was about the Secretary of Agriculture

32:05 - Mike Espy who was getting Super Bowl tickets and all kinds of

32:08 - other goodies from farming interests.

32:11 - And Justice Scalia wrote an opinion and said that's no

32:13 - problem.

32:14 - It does not violate the illegal federal illegal gratuity statute

32:17 - because it was not given for any specific official action or as a

32:20 - thank you for any specific official act.

32:23 - So Justice Scalia's absence from the court might leave a 4 4

32:26 - split over what counts as official action.

32:29 - But I think it raises the broader question of how do we

32:32 - want to finance our elections.

32:33 - One of the things I argued for in my book is that I would like

32:37 - to move more to public financing so public officials are not so

32:41 - dependent on large donors.

32:42 - And I would actually do it through campaign finance

32:44 - vouchers give everybody every voter a hundred dollars to

32:48 - allocate to political parties to candidates to interest groups to

32:51 - be used to fund our elections that would be collectively

32:53 - billions of dollars.

32:54 - And it would help to swamp the system and you could actually do

32:57 - it without overturning any cases by empowering the people to be

33:01 - able to fund are they actually going to be my my fellow

33:03 - question which you could do that without since Citizens United

33:07 - being overruled.

33:08 - That's right.

33:08 - So the question is would it be enough.

33:10 - I certainly would prefer it and I'm very.

33:12 - The current system and I was glad to see that just this past

33:15 - November the city of Seattle passed the first voucher plan

33:19 - are actually going to see how this works in action.

33:21 - I think it it combines market ideas with public interest ideas

33:25 - in a very innovative way.

33:27 - Leveling up by giving more money is a good thing.

33:30 - I also think we need to level down.

33:31 - So I argue we need to have twenty five thousand dollar

33:34 - contribution and spending limits together in any election.

33:36 - So if you're the Koch Brothers or you're George Soros to take a

33:40 - you know of a villain of the right who both have put lots of

33:44 - money in elections.

33:45 - Once you have twenty five thousand dollars contributions

33:47 - or spending together on any one race you're done.

33:50 - That would take overruling Citizens United would take

33:52 - overruling Buckley It's not happening tomorrow but it could

33:57 - happen next year.

33:58 - Now we can say.

33:59 - We'll have to see.

34:00 - Ok.

34:01 - So before we get some audience questions.

34:04 - This community of election law scholars is actually fairly

34:08 - small.

34:10 - You are two of the most prominent members and you

34:13 - acknowledge each other's contributions and in your books.

34:17 - So I'm going to ask you kind of a question perhaps you didn't

34:20 - expect but what do you have any comment on each other's work.

34:25 - Well I watch it.

34:26 - You know I think Rick's book is fantastic and I encourage you

34:30 - all to read it.

34:31 - And one of the reasons why is it's very nuanced in ways that

34:37 - we could explore some more so one of the points that Rick

34:42 - makes is that one of the reasons why he's sort of critical of

34:48 - just amending the Constitution with the new amendment is that

34:52 - there's going to be line drawing problems or line drawing

34:55 - challenges whatever one's position is with regard to

34:59 - campaign finance because even if you overrule Buckley and

35:03 - Citizens United as Rick says you have to ask the question what

35:07 - about media corporations.

35:08 - You know the New York Times or Forbes magazine.

35:12 - Fox News.

35:13 - And there's lots of chapters in that book that in a very careful

35:16 - very accessible way explains just what the challenges are for

35:21 - any point of view.

35:23 - And if I can make one comment about Justice Scalia on this

35:28 - there's a little known Justice Scalia opinion about Amtrak

35:34 - that's relevant to Citizens United because it was the

35:38 - question in the case was whether or not Amtrak was part of the

35:43 - government for purposes of the First Amendment.

35:46 - And Justice Scalia writing for the court says yes of course it

35:49 - is.

35:50 - And strikingly he says it doesn't matter that as a matter

35:53 - of formality Congress set it up as a separate corporation it

35:57 - functions as a public entity and therefore it has to be thought

36:01 - of that way.

36:02 - And if you put that opinion next to Citizens United you realize

36:06 - Citizens United.

36:09 - Even for conservatives there's a line drawning question because

36:12 - you know the Federal Reserve Bank of New York is a

36:14 - corporation but it's also part of the government.

36:17 - It doesn't have a right to spend money in elections the Treasury

36:21 - Department doesn't have the right to spend money in

36:23 - elections.

36:24 - Does a government contractor like Lockheed Martin have a

36:27 - right.

36:28 - And so I think there's been a lot of overreading of Citizens

36:32 - United because it doesn't apply to all corporations.

36:36 - Exhibit A is this opinion by Justice Scalia in the Amtrak

36:39 - case.

36:41 - Well Ned and I huge blurbed our book so we're going to say

36:44 - positive things but I've what I would say is I wrote a book in

36:48 - 2012 called the voting wars where I said all the fights

36:51 - about our elections now can trace back to what happened in

36:54 - Florida.

36:55 - All you need to know about what's going on now.

36:57 - Look at all the machinations that occurred on both sides and

37:00 - the partisanship.

37:02 - And I thought I thought that was a contribution in terms of

37:05 - showing that things could be traced back to 12 years ago at

37:08 - that point.

37:09 - And what I didn't appreciate until I read his book was how

37:13 - far that history goes back it doesn't start in 2000.

37:15 - It starts in the 1750 I think is where Ned is and it is very

37:20 - useful.

37:21 - We've made a lot of progress.

37:23 - We don't resolve our elections with violence but we've made

37:28 - progress but we haven't made enough progress that we could

37:30 - still end up with something like this.

37:32 - And what I think is most useful about that book is trying to see

37:37 - over the course of 225 years what's worked and what hasn't

37:40 - worked and I think he makes a very persuasive case that having

37:45 - neutral rules in advance and having people with integrity is

37:51 - something you didn't get a chance to talk about.

37:53 - I think very much up here.

37:54 - But it's in the book having people with integrity who are

37:56 - willing to have courage and to do the right thing is the kind

38:01 - of civic virtue that really needs to be recognized and

38:06 - rewarded.

38:06 - And that was one of the big takeaways from your book.

38:09 - Well it did the General Patterson and Joshua Chamberlain

38:12 - Governor Everett in Massachusetts was on the wrong

38:16 - end of a contested election and chose not to contest it and you

38:19 - even even mentioned Al Gore deciding not to prolong the the

38:24 - the Bush versus Gore controversy sort of examples of what Rick

38:27 - was just talking about.

38:29 - Yeah.

38:30 - So we have some questions and I think they're they're

38:32 - provocative.

38:34 - So let's get to as many of them as we can and this one hits

38:38 - close to home because the immediate past chair of the

38:41 - Federal Elections Commission is a very old friend of mine and I

38:44 - heard from her directly how frustrated she was but one of

38:47 - one of the comments is that the FEC which oversees the federal

38:53 - election law has essentially been been neutered.

38:56 - That the the process of appointing commissioners is

39:00 - endless.

39:01 - When they get there it's totally partisan they can't get anything

39:04 - done he said.

39:04 - Is that a fair characterization.

39:08 - Since that's a campaign financing I'll take the Federal

39:11 - Election Commission was created in that same 1974 law that

39:16 - Congress reviewed in the Buckley vs. locus of it sets up a rule

39:21 - that says that no more than three commissioners can be of

39:23 - the same political party and there are six commissioners so

39:26 - that sets up a situation of potential deadlock.

39:28 - And Congress has done this intentionally so that one party

39:31 - couldn't overcome the other.

39:34 - Now you think that would lead to deadlock from the beginning.

39:36 - But it turns out that until about 10 years ago the FEC was

39:40 - able to regulate.

39:41 - There were some things they deadlocked on but there were

39:43 - lots of opinions that were six to zero plenty where there were

39:46 - two and people crossed what you'd expect as the party lines.

39:49 - But what's happened over the last 10 years since the Roberts

39:52 - court has come in and has started striking down lots of

39:56 - campaign finance laws as violations of the First

39:58 - Amendment.

39:59 - The Republican commissioners have taken the view that the

40:03 - First Amendment should lead to reading these rules and as

40:06 - limited a way as possible.

40:08 - And so that's why there's been this deadlock.

40:10 - Why would President Obama appoint commissioners who

40:12 - believe this.

40:13 - There's been a tradition that says that when the president of

40:16 - one party we let the leading Senate Senator from the other

40:20 - side essentially dictate who the nominees will be.

40:24 - And so these are handpicked Mitch McConnell people and Mitch

40:27 - McConnell Senate Majority Leader is an opponent of campaign

40:30 - finance regulation completely.

40:32 - So we have this situation.

40:34 - So it is it is not functioning now on all of the important

40:37 - questions of disclosure and coordination and super PACs and

40:40 - which groups need to register so that we can get disclosure of

40:42 - donors.

40:43 - It's been a complete failure in my view but that's partly

40:47 - because of the structure and who's been chosen for that

40:50 - commission.

40:51 - So I knew we would get at least one Donald Trump question so

40:56 - let's get to it right away.

40:57 - So you have somebody who is self-financing and is having

41:02 - obviously a very significant impact on the campaign.

41:05 - What what is the implication of that going forward.

41:08 - Things that both of you talk about.

41:12 - You want to start on I'm sure.

41:14 - Well so what lesson can we take from Donald Trump self funding.

41:17 - Well part of it I've already mentioned which is that part of

41:20 - his appeal to those people who like him is that he's too rich

41:26 - to be bought and that there was a little piece in The New York

41:30 - Times they did a debate about whether we need Michael

41:33 - Bloomberg the former mayor of New York to save us from a Trump

41:36 - Sanders race.

41:38 - Yeah the white knight billionaire to come in and you

41:40 - know the story is that Lyndon Johnson when he was facing

41:44 - coming up for re-election it was some billionaires for

41:47 - multimillionaires the type who backed Eugene McCarthy who

41:50 - basically forced the Johnson to withdraw from the Democratic

41:54 - primary.

41:56 - I would rather have the people fund that rather than some

42:00 - billionaire white knight.

42:01 - And so what does it tell us that the one candidate who was not

42:05 - backed by billionaires on the Republican side is a billionaire

42:08 - himself.

42:09 - I think it still tells us that money in politics is very very

42:11 - important.

42:12 - The thing that I worry most about the phenomenon of Donald

42:17 - Trump and I wouldn't say just to him is that I can't remember a

42:22 - recent election cycle where it seems like the concept of sort

42:26 - of fair play and sort of being within that we're all in this

42:31 - together seems to be so frayed.

42:33 - I mean I appreciate Rick your point about the importance of

42:36 - civic virtue is the lesson of the book in the sense that even

42:41 - if we members of a party we are also in a common enterprise of

42:47 - our democracy and the system doesn't work unless there is a

42:51 - sense of that common sense and that that elections are

42:57 - legitimate contests to see who's going to temporarily be

43:00 - custodians of the government's trust for a certain period and

43:03 - then another we'll have another election and see who's going to

43:05 - be the custodians.

43:07 - And it seems like the the level of anger and vitriol is so high

43:14 - people are are sort of are willing to say it's OK to break

43:18 - the rules or just to destroy the system is supposed to play

43:21 - within the system that way.

43:23 - Another thing that just to throw this in seems to me that social

43:27 - media has had an effect that doesn't get enough attention on

43:31 - this point that you both made about about civility and respect

43:34 - for the process because people can can react immediately

43:40 - without editing without filtering without even worrying

43:43 - about what someone else is going to say and the candidates do it

43:45 - too.

43:46 - So it creates an environment where stuff is a lot more out in

43:50 - the open than it has ever been before.

43:53 - I think that's true although I think that the concern that I

43:58 - have is not the not the means of communication but the substance

44:01 - of the communication.

44:03 - I mean I think again I think there have been periods of time.

44:06 - There were some very vitriolic pamphlets back in the old days

44:10 - using that technology and Twitter can be used for good as

44:15 - well as for ill.

44:16 - One lesson that I had not anticipated that came out of

44:20 - Virginia disputed election for US attorney general's race in

44:25 - 2013 was that Twitter was actually used as a medium of

44:29 - transparency so that you had folks looking at the voting

44:34 - process.

44:35 - And if there was a mistake that could be quickly corrected by

44:39 - tweeting about it.

44:41 - Yeah I actually followed that and it was it was said something

44:43 - about me I guess.

44:44 - But I mean I was I was I was fascinated by that.

44:47 - That that you do like single single votes.

44:50 - You know we're getting that kind of review that kind of

44:52 - transparency and transparency is a good thing.

44:54 - So I think the.

44:56 - And I think other aspects.

44:58 - I mean I think technology for example could be used as a

45:01 - positive in the campaign finance arena just like vouchers would

45:05 - be valuable.

45:06 - We might be able to use new innovative forms of Internet

45:10 - technology to expand the public space of campaign discourse that

45:16 - isn't funded by private money.

45:18 - So I'm agnostic on technology.

45:21 - I'm more worried about the cultural forces.

45:24 - So another question this seems germane to me.

45:28 - We have this electoral college system which like a lot of

45:31 - things as you know reflected the reality back in the 18th

45:35 - century.

45:37 - One of the people here is asking should we get rid of it.

45:39 - We just have a popular election for president would that would

45:42 - that advance the goals of legitimacy that both of you are

45:45 - talking about.

45:47 - Short answer.

45:48 - My own view is yes but the most striking thing that I learned in

45:51 - the history inquiry that I did for this book was I discover I

45:56 - mean other people knew about them but I didn't know about

45:59 - them before.

45:59 - James Madison wrote some fascinating letters in the 1820s

46:05 - when you know when I think of James Madison I think of him you

46:08 - know here in Philadelphia at the moment of the founding in 1787

46:12 - and that summer at the convention.

46:14 - And that's an important part of his life important part of our

46:16 - country's life.

46:17 - But he lived on beyond Philadelphia in 1787.

46:22 - He had been president of the United States and reflecting

46:25 - back on his life and his work in the 1820s.

46:29 - He wrote to some friends he said we blew it back in Philadelphia

46:33 - on the design of the Electoral College and he wrote to his

46:36 - friend George hay an amendment that he wanted adopted to

46:39 - replace the Electoral College with a much more Democratic

46:45 - version.

46:45 - It didn't get adopted.

46:47 - But he said the reason why we were mistaken that summer in

46:52 - Philadelphia is we got to the issue of presidential elections

46:56 - late in the summer and we were tired and impatient and wanted

47:00 - to go home.

47:02 - You know we're just human and and he actually forecasted the

47:07 - problem of the election he said because he had lived through

47:12 - congressional disputes and so forth so in 1826 he writes

47:15 - another letter he says I'm really worried if we ever get a

47:18 - disputed presidential election because the stakes are so high

47:21 - and there will be arguments on both sides plausible arguments.

47:24 - We don't have the institution to handle that.

47:27 - So I think we should remember our founders but we shouldn't do

47:31 - that as a snapshot just one moment we should realize that

47:35 - they learn from experience and that Madison in the 1820s was

47:39 - not the same person as Madison later.

47:41 - The point you make in your book as know we had Hayes and then we

47:44 - had Bush Gore but there were about three or four other near

47:48 - misses that if once in fact the one that I remember that really

47:53 - I think kind of was below the radar was 2004 that was Bush

47:59 - Kerry that if Ohio had gone the other way Kerry would be

48:02 - president and there were some disputed votes in Ohio at your

48:06 - home.

48:08 - That's where I think that was partly the genesis of why I

48:11 - started the project about because I because 2004 wasn't it

48:15 - was a near miss.

48:17 - If Ohio had been as close in 2004 as it was in in 1976 Carter

48:24 - beats Ford by about 10000 votes.

48:26 - If 2004 had been 10000 votes in Ohio instead of 100000 votes

48:33 - 2004 would have been as messy as 2000.

48:36 - So we really escaped you know another another close call and

48:42 - we may know it's going to happen at some point whether it happens

48:45 - next year or next time.

48:46 - But it's it's like earthquakes in California,

48:50 - There's going to be one.

48:51 - Yeah.

48:51 - So.

48:51 - So last question in I was in Canada a few years ago during

48:58 - their parliamentary election and they have strict limits on how

49:03 - long you can campaign.

49:04 - I mean there's a there's a fixed campaign season and in any

49:08 - campaigning outside of season is prohibited.

49:11 - So I want to combine a couple of questions we got from the

49:13 - audience.

49:14 - One was should there be a national primary know instead of

49:16 - this sort of slow drip of primaries that we have starting

49:19 - in in January.

49:21 - And secondly should there be and could there be under the

49:23 - Constitution some limit on the length of the campaign season

49:27 - for the presidency.

49:28 - Let me take the first and let you take that.

49:30 -

49:31 - I think our primary system is chaotic in kind of a mess and

49:36 - nothing that anybody really.

49:38 - No single person designed.

49:39 - So I would I would change it if I could.

49:42 - I'm not sure one primary day would be a good idea.

49:46 - I think I think it is important to have a season where the

49:51 - electorate as a whole gets to know the candidates.

49:53 - And and there's a winnowing process.

49:57 - I think it I think it would be too hard on challengers and

50:01 - upstart candidates just to have to have one national primary

50:05 - day.

50:06 - But that isn't to say that we should have the system that we

50:09 - have now with the sort of unrepresentative states going

50:12 - first kind of thing.

50:14 - Some people have suggested five primary days 10 states on five

50:19 - different days spaced out large states small states and in an

50:22 - appropriate sequence of some rationality would be good.

50:26 - I don't think it would be workable to have time periods in

50:32 - the United States in part because drawing that line

50:35 - between elections speech and what's not wearing a permanent

50:38 - campaign in this country part of the reason we're in a permanent

50:40 - campaign and it's worth contrasting with Canada is we

50:43 - have a highly polarized system and to have a somewhat polarized

50:45 - system in Canada to the parties mean very different things.

50:49 - But we have a polarized system and separation of powers.

50:51 - And so we have press.

50:53 - We have a president of one party we have a Congress of another

50:55 - party.

50:56 - It's easy to blame the other.

50:57 - And so there's a constant kind of turmoil and if we had a

51:00 - parliamentary system I'm not advocating that we move to one

51:03 - that would be a huge change.

51:05 - At least say the Democrats could enact their policy.

51:10 - We could say if we like it and we vote them out or keep them

51:13 - here everyone can blame the other and we end up with

51:15 - stalemate.

51:16 - And so that's part of the reason we have the permanent campaign

51:19 - that this always this kind of churn.

51:23 - I think it's one of the features of our constitutional design

51:26 - that if there were a way to overcome the inertia we should

51:29 - do it.

51:29 - But it's hard to say how to do that without having winners and

51:31 - losers which makes it very difficult.

51:33 - So there are just that the task of getting to a situation where

51:37 - we had a fixed campaign season is just more than we can handle

51:41 - under our current system of government.

51:43 - I think that's right.

51:45 - So I think we're out of time.

51:47 - And what I'd like to do is think both of these wonderful scholars

51:51 - for their contributions and and you for your questions and I

51:55 - hope it was a worthwhile hour.

51:56 - Thanks very much.