Responses to a Pence Commission on Voter Fraud

February 15, 2017
posted by Bob Bauer

There seems to be a question of whether the media should provide platforms for Administration spokespersons who regularly use the airtime to disseminate falsehoods. “Truth matters,” Margaret Sullivan writes, and she worries that viewers will come away misled, as some might have last Sunday after Stephen Miller’s appearance in which he repeated the charge of “serious” voter fraud. But Sullivan misses the point that the Administration should be given every opportunity to say what it will on this subject (and others). We might regret that some in the audience, predisposed to believe these claims, may mistake them for facts. But Miller, following Trump, is helping, by speaking, to clarify the nature of this initiative, and it is important that it be understood.

One consequence of clear understanding will be the disinclination of true experts to participate in this process. Few with credibility will be anxious to sign up to validate the work of a Commission launched to validate a conclusion already reached. And, as Miller made clear, this conclusion rests on what “everyone”--at least everyone in New Hampshire--knows. It is hard to imagine who will take this “everyone knows” school of election administration seriously and risk their reputations by enrolling in it.

In the normal case, when a Commission-in-the-making is virtually founded on the rejection of expertise, its bid for respectability would be a long shot. But when its political purpose is plain, because it is the creation of candidates pursuing their own self-interest, it has no hope. The President’s staunchest political allies might stay with him on this, and he can count on groups that thrive on allegations of fraud. In the wider world of administrators and experts, both Democratic and Republican, the prospects of having to engage with this Commission will inspire dread.

This leaves members of this community with a couple of choices.

Speech Ethics

February 13, 2017
posted by Bob Bauer

The Senate’s invocation of Rule 19 against Senator Warren could not have been more curiously timed. Supposedly concerned to uphold senatorial debate standards, to keep out the nasty stuff, Senate Republicans disqualified Warren from further debate on the Sessions nomination because she read from Coretta Scott King’s 1986 statement opposing Mr. Sessions’ elevation to the bench. Meanwhile, the President routinely tweets out abuse of political adversaries, in the courts or (as in the case of John McCain) in the Congress.

Of course, the President is not bound by the Congressional rules and traditions. But that is the interesting question: if there are standards to be applied to democratic debate, especially to the remarks of senior elected officials, why should those standards be limited to legislative speech? And, if extended to executive branch speech, how?

It might be thought that standards of this kind are significant only in the management of a deliberative body: their function could simply be to avert fist fights on “the floor,” where debate takes place, or, short of violence, to keep order. There is more to them than just this functional administrative purpose. When the Senate censured Joe McCarthy in 1954, the politics were complex, but the Resolution noted his verbal abuse of adversaries. It cited his accusations that the Senate was convening a “lynch-party” against him, that a senior Member directing the Select Committee censure inquiry was “cowardly,” and that the Committee was acting as “attorneys-in-fact” for the Communist Party. The Senate applied the severe penalty of censure in part because McCarthy’s vicious speech violated “senatorial ethics” and "tended to bring the Senate into dishonor and disrepute."

This goal of protecting against institutional disrepute has been reflected for years in the ethics codes of both the House and the Senate.  See, e.g. S. Res. 338, 88th Cong., 2d. Sess. (1964]; House Rule XXIII Cl. 1 (“A Member, Delegate, Resident Commissioner, officer, or employee of the House shall behave at all times in a manner that shall reflect creditably on the House.”) Members engaged in abusive and irresponsible speech are not only disregarding some housekeeping regulation, like a prohibition against bringing their dinners into the chambers: They are presumptively acting in violation of their personal ethical obligations. There is no reason why reckless, vituperative speech by executive branch officials would not bring dishonor and discredit to that branch of the Government.

The Pence Commission on Voting Fraud

February 8, 2017
posted by Bob Bauer

President Trump’s arrangement for an inquiry into election voting fraud is fatally compromised by political self-interest. Before the November election, he insisted that voter fraud might cost him the victory. After he had won, he decided that it robbed him of success in the popular vote. He put the number of illegal voters at 3 to 5 million, all of it allegedly committed at his expense.

And having taken this position, he is not only looking back. He is already a candidate for reelection, and this project would serve his purpose of reducing the risk of another popular vote disappointment. So he will establish a presidential commission to look into voting fraud, and he intends to appoint as its chair his Vice President, who was his presidential running mate in the last election and will very probably be on the ticket again 2020

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This process has lacked credibility from the start, and if it were only a matter of appreciating the nature and limitations of this political project, then not much more attention would need to be paid to it. But in what happens next, once this Pence Commission is formed and launched, the long-term cost to bipartisanship in voting reform could prove high.

There has been to this point room for bipartisan cooperation on election reform, and it has been productive. This is not to say that the political parties don’t fight over these issues, and sue each other, or that self-interest and outright chicanery is not evident in legislation, regulation, administrative interpretation and positions taken in litigation. But there has been over the same time that the “voting wars” have broken out, Democrats, Republicans, and others have done what they could to figure out where, in the interests of voters, the partisan brawling could give way to measured, professionally disciplined discussion of real problems and feasible reforms to improve the voting experience for all citizens.

This cooperation has occurred in support of special studies like the one undertaken by the Presidential Commission on Election Reform. It continues through other programs, such as those sponsored by the Bipartisan Policy Center. BPC in fact recruited to this work a former Commission member, a Democrat, and a former Republican Secretary of State, a Republican, who were paired in the leadership of this work. The Commission, the BPC and other similar initiatives have counted on, received and benefitted enormously from engagement on a bipartisan basis with the National Association of Secretaries of State, the National Association of Election Directors and other election administration professionals. These relationships provide access to reliable information and to the best judgment of experienced officials and experts. The keys are bipartisanship and professionalism.

Church Speech

February 6, 2017
posted by Bob Bauer

In a first step out on political reform (setting aside his executive order on lobbying), Donald Trump promised churches he would relieve them of the restrictions of the Johnson amendment on campaign activity. He didn't go into any detail.

But over time there have been different proposals for protecting religious institutions’ political speech. One of them is arguably sensible, while another, more aggressive reform of this nature is best avoided.

Attention began to turn more widely to this topic when in the Bush 43 years there was a suggestion that IRS was monitoring sermons and prepared to act against churches where it found campaign content in speech from the pulpit. A notorious case involved a sermon that was critical of the war in Iraq and included favorable comments about Democratic presidential nominee John Kerry and critical ones of his opponent George W. Bush. Nothing happened; the IRS backed off. But it remains the case that while the Service seems to have no particular appetite for regulatory action based on this kind of speech, it could, if it wished. And as the Bush/Kerry episode revealed, the issue can cut in either partisan or ideological direction.

That is one issue, and a reform has been advanced to address it. Its sole point would be to allow for speech in the ordinary course of communications by a religious institution. In 2013, an organization called the Commission on Accountability and Policy for Religious Organizations recommended that religious institutions be free to make communications "related to one or more political candidates or campaigns... made in the ordinary course of… regular and customary… exempt purposes," provided that the expenses incurred are de minimis. The exemption would apply specifically to sermons delivered "as part of a religious organization's regular and customary worship services."

The Supreme Court Confirmation Argument, and Limits

February 3, 2017
posted by Bob Bauer

Now with the Gorsuch nomination there is another round of largely fruitless argument about the standards that Senators should use in advising and consenting on Supreme Court nominations – – or whether they should simply refuse to consent at all. It goes like this: each party has an obligation to put up for a vote or even consent to the confirmation of a nominee whose views are “mainstream.” The only exception is an election year, or so now say the Republicans to defend their refusal to take up the Garland nomination. This alleged election-year proviso has turned into volleys of “you did it, too”/ “no I did not,” with the Republicans implausibly insisting that they only refused to consider Judge Garland because they were exquisitely sensitive to an election-year precedent they claim that Joe Biden established.

Other than in an election year, and when the qualifications of the nominee are unchallenged, the disagreement is then mostly redirected into one about what constitutes “mainstream.” Given the choice facing them, Senators are virtually compelled to split on this question. Because the true problem here, discussed only obliquely, is the extraordinary power and ambitions of the Court whose members may, and typically now do, serve for many decades. Elections must have consequences, as the saying goes, but it useful to retain some common sense grip on how far the point has to be taken. Each opposition party will be hard-pressed to accept that, with its generously provided "consent,"  a president can strive to recast the constitutional law of the land for the next generation and beyond. Acceptance may be harder if the opposition is smarting from a “stolen seat,” or if it is concerned that a nominee is too much of an ideologue, or if the Court's balance will be immediately "tilted," but it is enough that the appointment is for a lifetime.

It’s conceivable that there is someone somewhere available for nomination who both parties would believe to be reliably moderate in his or her views--a difference-splitter whose decisions would please progressives one day and conservatives the next. But neither party will most of the time be inclined to take the chance. The moderate today could turn out tomorrow to have preferences that run more consistently in one direction. It cannot be known for that matter whether in a decade or more the nominee’s jurisprudential disposition will shift or undergo major transformation.

To imagine that moderation suffices as a standard is also to ignore the probability that a president has campaigned on a promise to nominate a candidate with dependable jurisprudential or ideological commitments. The very reason that he or she is moved to make such a promise returns the argument to the fundamental issue: voters perceive that the Court has an outsized role in the resolution of major and highly contested issues--that it is activist on issues they care deeply about, whether or not the activism is inspired by originalism or belief in a living constitution. A president, but also political opponents, will balk at urging supporters to have faith in a nominee identified as moderate and just hope it turns out all right. There is no chance of persuading them to take Alexander Hamilton’s stated view of the Court’s “comparative weakness,” or to share in his confidence that impeachment would be available to correct a mistake.