Professor Lessig’s Electoral College Litigation

September 19, 2017
posted by Bob Bauer

It happens often that calamitous election outcomes are attributed to democratic dysfunction, and reform proposals follow from there. Those Republicans who are not deeply cynical about voter ID--and there are a fair number of those--sincerely and mistakenly believe that they lose elections because of illegal voting. Years ago, they convinced themselves that structural bias would keep Democrats in power in the Congress until the nation adopted mandatory term limits. Democrats in 1971 famously believed Richard Nixon reinvented himself politically through dark manipulations of television advertising, and to weaken his reelection prospects, their ranks in the Congress enacted a short-lived law that limited candidate media expenditures.

Of course, not all reform proposals born of frustration are misconceived or doomed to fail. But there are risks, some of which are apparent in a new reform initiative from Professor Lawrence Lessig’s: litigation to establish that states may not allocate Electoral Votes on a winner-take-all basis (WTA). His argument is not entirely about a change in the rules to achieve preferred outcomes or prevent bad ones. He does contend that, by driving active campaigning to a handful of states, WTA limits meaningful participation in the election to a handful of states whose voters see the most paid advertising and enjoy--if that is right word--the most visits from candidates and their surrogates.

Professor Lessig’s next argument, however, is more political. He sees WTA as putting more power in the hands of older white voters in industrial heartland states. It is fairly clear, then, that this proposed litigation is a response to the election of 2016, grounded in the belief that a change in the allocation would work a shift in the balance of national political power. And we have seen a reaction like this before. In 2012, the Democratic nominee won Pennsylvania, and those who were bitter about WTA were Republicans state legislators who threatened to shift a Congressional-district based allocation. Indeed the same move among Republicans is now underway in the State of Virginia and Minnesota.

So this is one risk: guessing wrong, as the Republicans did in 2012. Had they succeeded then, the congressional district-based allocation of electoral votes would have benefited Hillary Clinton in 2016. Politics is not static, and the judgment about the political effects of specific allocations is hazardous.

Another risk is misreading, or reading narrowly, the requirements of democratic participation in the concrete setting of the politics of the era.

The Mayday PAC and Progressive Politics, Part II

September 10, 2014
posted by Bob Bauer

Jim Rubens has lost, but the discussion of Mayday politics will continue. The issues it raises for progressives were raised to a new level of visibility by the news that the PAC was working  with Stark360 , a New Hampshire organization that opposes campaign finance reform and is generally hostile to progressive objectives.  Professor Lessig replied to critics with a clear and thoughtful defense, denying that he was  “compromising” on fundamental commitments.  He was not, he stressed, collaborating with Stark360 on anything on other than the election of Jim Rubens, and it was a strength, not a weakness, to join with adversaries in the search for “common ground.”

But it seems that this reply confuses the issue.  That Professor Lessig means  to advance the cause of reform, and that his joint venture with Stark 360 was launched (on his part) for that purpose alone, is not to be doubted. As in all matters political, however, the means chosen have consequences, and Professor Lessig underestimates the burden he carries to establish for progressives that the means are well fitted to his ends. In this case, in New Hampshire, he has yet to make the case.

The Mayday PAC and Progressive Politics

September 4, 2014
posted by Bob Bauer
Walter Shapiro and Larry Lessig have argued over whether Lawrence Lessig’s Super PAC, Mayday, is poised to claim success in electing its endorsed candidates.  They correctly assume that this measure—electoral impact—may dominate discussion of how well the PAC  performs.  But it is not the only measure. For progressives, who make up the natural constituency for the Mayday reform program, there is the additional question of whether, considering carefully the PAC’s strategy, they should welcome any success it achieves. It is a question of the type of politics represented by Mayday.
Of the several constitutional amendments favored by Justice Stevens, the one dealing with campaign finance reform strikes Cass Sunstein as “the strongest.” Cass Sunstein, The Refounding Father, N.Y. Review of Books Vol. LXI, No. 10 (June 5, 2014) at 10.  He argues that without controls on political spending, income inequality will beget political inequality.  Especially because we are prepared to accept vast inequality in the economic sphere, we cannot tolerate it in our politics. To the extent that we might worry about incumbent entrenchment if politicians are empowered to set the rules of the game, we should take comfort that the workings of the political process—“democratic debate”—will supply the necessary safeguards.
Justice Stevens delivered brief testimony to the Senate Rules Committee, taking no questions. Maybe no exchange with the committee members was needed: he said little that was surprising or required elaboration.  He had made public before his proposed constitutional amendment and the analysis he offered in support of it closely followed his lengthy dissent in Citizens United. As a retired justice, displaying extraordinary energy and commitment, he certainly brings attention to his cause, but he won’t convince many not already in his corner, and the weaknesses in his case will be turned against the project, whatever its merits, of moving a constitutional amendment.