Chris Elmendorf and I had an exchange about the goal of strengthening "public confidence" in any election law reform.  It seemed that chasing this ghost, as a primary objective, would lead quickly nowhere, and that election reform would produce confidence if confidence was earned--by performance. So far the term "confidence" has shown up to ill effect in the Supreme Court's jurisprudence: it is the easy way out in empowering election officials to adopt "anti-fraud" measures in the absence of any evidence that fraud occurs.  But Elmendorf makes the point that the objective of higher public confidence should not be discounted altogether, especially in encouraging the losing side to accept the results. 

     This seems fair--if one believes that particular reforms can ever be shown to improve "confidence" in the political process.  In campaign finance reform, each successive cycle of reform is justified in part as a confidence-building measure, an antidote to the corrosive belief that government is for sale.  Polling shows public confidence rarely if ever responds to this medicine. Voters are certain that politicians are sneakily, regularly engaged in thriving commerce with special interests.  They accept this, more or less, when times are good and government appears to perform well.  Their mood darkens when their elected representatives fail to deliver the goods, and it is then that, however reformed the process, confidence plummets.

     Even this picture is badly oversimplified, of course.  No one really knows of what confidence is made (other than performance).  Other leading indicators include partisan and other allegiances: the other side is more corrupt then yours, and your representative is a cut above the rest. Newt Gingrich convinced Republicans that the House under Democratic control was corrupt; and when the Republicans' turn came, Democrats quickly made the same case against his Speakership and subsequent Republican Congresses. And on and on. (Not that there is no corruption, but much does depend, except in the most notorious scandals (Watergate), on the political standpoint of the observer.)

     When government legislates political reforms with "confidence" as both aim and argument, it runs two risks.  The first is that it is lightening its burden: the rhetoric of "confidence" is too easy, as the Court's misuse of it has demonstrated, and it can excuse obscure sloppiness of design, or worse.  Another risk is that of overcommitment.  Laws defended as crucial to shoring up lagging "confidence" can be just as easily the cause of its further deterioration if the promised changes are not experienced.  Little in the history of political reform make the case that it bolsters confidence meaningfully, in the long run.

     There is one major difference to be noted, for these purposes, between campaign finance and election administration reform.  Attention to "confidence" is more essential to the case for campaign finance regulation.  The Supreme Court has ruled that government must show either corruption or its appearance, and actual corruption in the true quid pro quo sense has been sufficiently hard to establish (as evidenced by the record in the McConnell case) that corruption has been redefined to bring it more readily within the state's probative reach, or to draw it very close in character to "appearance."  "Appearance" is the available alternative and has become increasingly important to the expansion of regulatory authority.

     In election reform, we can measure, as Heather Gerken's Democracy Index would show, what is wrong: the breakdown in machines, or the length of lines, or the failure of states to maintain accurate registration rolls.  So why not just stay focused on that?  We will know for sure if we improve our measurements and track progress accordingly. 

     Partisans may still grouse when an election is close and called against them. We can do little about that, but there is much that can be done to make the complaints less plausible.  Do those things, and confidence will rise with the success of the effort. 

Bob Bauer