FEC Commissioner Ravel came to town with every intention to make change and left in a state of disillusionment. She aspired to build fences and ran into a wall: The Republicans had no interest in cooperating in a progressive reform program, not even bringing “dark money” into the light. The Commissioner then took her case public, before the sympathetic audiences in the media, but this was a dead end. Republican Commissioners are not moved by op-eds in the New York Times. By the time of her resignation yesterday, Commissioner Ravel had made her name by stressing the pointlessness of expecting anything from her agency. She may have made little headway in advancing the cause of transparency in campaign finance, but she was very clear about her own views.
Her letter of resignation is a parting expression of her commitment to strengthened enforcement of campaign finance laws. It is also a last testament to the futility of her quest. She refers to various statements the President has made about the broken campaign finance system and urges him to prioritize reform among his domestic initiatives. Of course, Mitch McConnell runs the Senate and there is no chance of his agreement to the program she advocates of ending “dark money,” reversing Citizens United, public finance and a reinvigorated FEC.
The president to which she made this last appeal may or may not have meant what he said about campaign finance. He was a billionaire candidate who could spend freely: his “money in politics” was not restricted. But he did not win by swamping his foes with superior resources. Candidates with plenty of campaign money, like Jeb Bush, failed early. On the subject of election law, this president seems far more motivated by his belief in “voter fraud.”
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.
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.
President Trump has more detail to provide on what he means by a “major investigation” into voter fraud. Already, however, he has drawn sharp objections to his preoccupation with illegal voting, including from within his own party and the National Association of Secretaries of State, on the basis that there is no evidence to support his claim. His own press secretary seems to have retreated to the position that "he [the president] believes what he believes."
But it cannot be lost in this debate that the President is taking an extraordinary step with the contrivance of some sort of “investigation,” whatever the form takes. He is moving, openly and aggressively and within days of his inauguration, to use his public office to advance his personal political interests as a candidate for office. One such interest, apparently, is to contest the popular vote count of the 2016 general election--his election. The second, it is fair to assume, is to do everything necessary to establish the fraud he is convinced is rampant and push for measures he deems helpful to his next election campaign.
The first of these objectives is quirky. It is not the usual course of events that a candidate challenges the outcome of an election that he won. But it is still his own election and he intends now, as President, to put the 2016 popular vote margin in question for his own political benefit, to satisfy--as he sees it--a political need.
The second of these interests is his own reelection. Until we learn otherwise, Mr. Trump will be a candidate for re-election in 2020. Now, as president, he intends to order up some investigation with implications for this candidacy. Critical commentators have touched on this concern to some degree, warning that this investigation might be intended to feed into the broader GOP initiative on voter ID and other restrictions on the franchise. The investigation would serve to spur proposals for further additional restrictions that, while unwarranted as policy but designed to burden voters, could discourage or impede voting primarily in communities with high Democratic support. This is a possible, perhaps even a likely, outcome, and it both deeply objectionable and sure to spark a new round of voting rights litigation. But the context in which the President has raised the issue is not his party’s programmatic attention to voter fraud, but his election, the 2016 election, and his conviction that it cost him millions of votes.
The Seventh Circuit insists that the district court in the Wisconsin ID litigation was too lenient with the option of an affidavit for voters who could not with reasonable effort obtain a qualifying photo ID. So the Court directs that this relief be limited to the class of voters in genuine need, and it is seeking from the court below “objective standards” election officials could use in determining what constitutes “genuine difficulties” in obtaining ID. To support its position, the Seventh Circuit cites a portion of Crawford, offering this selection:
Yet the Supreme Court held in Crawford v. Marion County Election Board, 553 U.S. 181, 198 (2008), that “the inconvenience of making a trip to the [department of motor vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.” A given voter’s disagreement with this approach does not show that requiring one trip to a governmental office is unreasonable.
The Seventh Circuit chooses to omit the opening three words of this sentence in Crawford: “For most voters…” In other words, the Supreme Court in Crawford does not say that the inconveniences are minor for all voters, but more generally for most voters. It does not even suggest that the number of voters for whom these inconveniences would be significant are small or trivial in number, only that it is a “limited number” and that “most voters” don’t confront the problem. Crawford suggested that the limited number may include elderly persons born out of state and those economic and unspecified “personal” limitations. 553 U.S. 199.
The voting rights and campaign finance wars have been fought on terrain largely shaped by two major and controversial decisions: the Crawford case on voter ID requirements, and Citizens United on independent spending. Critics have lamented Crawford’s naiveté about the stated value and inevitable partisan misuses of ID requirements, but it seemed that supporters had going for them the “common sense” judgment that voters required to have an ID to board a plane can be reasonably asked to produce one to vote. So one might have thought that Crawford was here to stay, even as the Justice who wrote for the Court, John Paul Stevens, has expressed regret.
Citizens United got more bad press in many quarters for opening up direct corporate political spending and for giving a boost to Super PACs. Its author, Anthony Kennedy, continues to defend it. He points to the silver lining: the court’s brief, arguably cursory, salute to disclosure, even as Kennedy concedes it is not yet working in practice as he had hoped it would. The critics who think the court flipped open the Pandora’s Box of campaign finance have put whatever hopes on the antidote of disclosure, and more speculatively on a constitutional amendment to overturn the case’s core permissiveness.
In light of developments of recent weeks, it is interesting to consider where the law set in motion by these cases is heading.