 Good morning. My name is Erwin Chemerinsky and I have the thrilling opportunity to be the founding dean of the law school here. And my role this morning is simply to welcome you to UCI Law School. I know that no one comes to a conference to hear that deans welcome, so this is going to be really brave. But I did want to take a moment to thank Rick for planning the conference, thank all of the participants for traveling and being here, thank all of you for spending the day here. We're so incredibly fortunate to have Rick on our faculty and I'm very grateful to him for planning this symposium. It couldn't be more timely, all of your presence indicates it couldn't be more important than the things that we're discussing today. I thought I would just take a moment and invite you to take advantage of the facilities here at UCI Law School and to let us know if there's anything that we can do to help you during your time here. The law school is the first floor of this building, all four floors of the building that's just that way and then half of the building that's behind me just the other side of the parking lot. The library is the first two floors of that building. Please feel free to use the resources of the library and make yourself comfortable there. There's a student lounge with a big screen TV on the fourth floor of the building across the parking lot. Please again use that. As well as all of the resources the campus are open to you and available to you during the time here. Emphasize if there's anything that any of us can do, please let the staff know. I want to make you stay here as comfortable as possible. I hope that this is a productive conference for everybody. Again, thanks to Rick for planning it. Thanks to all of you for coming. Good morning. Thank you for coming. I'm Rick Hassan of UCI Law School. It's my pleasure to welcome our panelists, guests and web viewers to Fox's henhouses and commissions assessing the nonpartisan model in election administration, redistricting and campaign finance. This event is sponsored by UCI Law School, the UCI Law Review, which will be publishing the papers from this conference, and the UCI Center for the Study of Democracy. Thank you Irwin for your kind words and your generous support for this program. Thanks to the Law Review for publishing the papers and thanks to Brittany Rodriguez, Patty Furkawa, Iris Yokoe, Rex Bossert, Joe McIntyne, the entire UCI staff for excellent professional support for this event. During the 2000 Florida debacle, the public focused its attention for the first time, albeit briefly, on the partisan administration of U.S. elections. During the 36 days of dispute over who would get Florida's electoral votes and therefore the presidency, it became clear that those running the key aspects of the election had partisan ties and potentially partisan conflicts of interest. Democrats focused on the actions of Florida Secretary of State Catherine Harris, the chief election officer of the state, who was not only an elected Republican official, but also honorary co-chair of George W. Bush's presidential election committee in Florida. Harris made a number of decisions on issues related to the timing of the election contest to recount standards and other issues, all of which tended to benefit Republicans. Her decisions could not be understood simply as a neutral election official, simply applying a strict interpretation of Florida's murky election rules. For example, she adopted a very lax standard for the acceptance of late-arriving military and overseas ballots, the decision which was once again seen as benefiting Republicans. But while Harris was rightly the focus of Democrats' ire, she was hardly the only partisan actor in Florida. Consider Florida Attorney General Bob Butterworth, a Democrat who issued an opinion, a legal opinion on the timing of Gore's election protest and on Harris's interpretation. Remember mind that Butterworth was one of the honorary chairs of Gore's campaign in Florida and that he had no jurisdiction under Florida law for these election matters. And then there were the local election officials and local canvassing boards. Harris's office had ordered a private company to produce a list of potential felons to be removed from the voter rolls. Local election administrators who were Republican were much more likely than Democrats to use the list and remove felons. And while Democrats focused on the fact that the purge list had many false positives and led to the removal of eligible voters who were mistaken for ineligible felons, Republicans note that many felons ended up voting in Florida's election. They were not removed by election officials, especially Democrats. A now familiar divide between Republican election administrators favoring integrity and Democratic administrators favoring access quickly emerged. And when it came to recounting, Democratic County canvassing boards adopted forgiving and shifting standards for recounting punch card ballots, decisions which helped Gore significantly narrow his gap with Bush. All of this led to the Florida disputes in the courts where six Democrats and one independent on Florida's Supreme Court issued rulings which helped Gore continue his struggle to catch up to Bush and then to the U.S. Supreme Court, which divided five to four on conservative liberal lines and a decision which ultimately ended the election contest with Bush ahead and Democrats fuming. In the 12 years since the Florida debacle, states have done little to remove partisan election officials from running our elections. Florida did make a change, but arguably to a model which is makes the position of Secretary of State more rather than less partisan. The Secretary of State is now an appointee of the governor. Kurt Browning recently left his position as Florida's Secretary of State and rumor has it he did so because he was not willing to go along with a new controversial purge of potential non-citizen voters. No problem, Florida's Secretary of State appointed a new Secretary of State who did not have such worries. In Ohio, one of the most contested battleground states, the last two Secretaries of State, Republican Ken Blackwell and Democrat Jennifer Bruner have made controversial decisions which seem to benefit their political party. Blackwell famously issued an order rejecting registration cards that were not submitted on 80 weight paper. Bruner issued a decision rejecting McCain produced absentee ballot applications where voters did not check a box affirming that they were citizen, a box that was not required by Ohio law. Current Secretary of State John Hustad, a Republican, at first appeared to move beyond the partisan fray, but more recently he seems to have moved into a pattern of favoring his party's position on contested election issues. We may yet go into the 2012 election with additional cases going to the Supreme Court. While there has been no movement on adopting non-partisan or bipartisan models when it comes to election administration, things are very different on the redistricting front. Most prominently, California recently completed its first round of a process of redistricting done by a citizen commission whose members were chosen through a Rube Goldberg-esque process set forth in a very hard-to-understand California initiative. Ironically, the model was talented by California Republicans as a way to take redistricting decisions away from the Democratic-led partisan legislature. Republicans joined with good government groups like Common Cause to get the measure passed by California voters. But after the first round of redistricting, the results were blasted by Republicans as being manipulated by Democrats through the commission. Yet court challenges to the redistricting plans have either failed or have been abandoned. Partisan fights over citizen redistricting were even worse in Arizona, where the Republican governor sought to remove the head of the Independent Redistricting Commission, claiming she was biased towards Democrats, only to have that action rebuffed by the state Supreme Court. Meanwhile, in the campaign finance arena, the FEC's bipartisan model, no more than three members of the Sixth Member Commission, can be from one political party, which has practically meant three Democrats and three Republicans, seemed to work reasonably well for many years. But in more recent years, it has led to party stalemates on important issues, including those related to disclosure. Three to three deadlocks have rendered the FEC much less powerful than it was before, leading to calls by reformers to move away from its bipartisan model. Such movement appears to have no support either from Republicans nor Democrats in Congress, nor has President Obama followed through on his calls to issue a plan to reform the FEC. As we begin today's program, let me list the following cluster of questions, which I hope will be addressed by today's paper presenters and discussants. First, is nonpartisanship in administering elections possible? What do we mean by nonpartisanship? Are there different models of nonpartisanship to choose from? Second, is nonpartisanship desirable? How does it compare to bipartisan and partisan models on questions of accountability, accuracy, and public acceptance? Third, what can we learn from the experience of individual states and other countries? And how much does our historical experience of hyper-federalized administration block change? Are there cultural issues which differentiate us from other mature democracies which do use nonpartisan models? Fourth, are there differences over whether nonpartisanship is a desirable or achievable model when comparing election administration to redistricting and campaign finance? Fifth, what explains shifts, whether commissions or successes or failures? How did the FEC move from a position of bipartisan compromise to one of confrontation? And sixth, what role do courts play in these disputes? Do courts count as nonpartisan institutions? Should there be specially constituted courts to adjudicate election disputes? I look forward to a day of stimulating and provocative discussion. The plan for the day is as follows. We're going to begin with a panel on redistricting. After a short break, we will turn to campaign finance. We'll then have an opportunity to collect box lunches and reassemble in here for a keynote address from Ned Foley with commentary by Heather Gurkin. After the keynote, we'll take a short break, and then we'll meet for the final panel of the day on election administration. And now I'd like to introduce the panelists to our first program and invite them to come forward. Let the panelists on the first program just come forward. OK. If you look in your programs, you will see extensive biographies of each of the speakers. Rather than fill the entire time with reading those extensive biographies, I invite you to read them. I will just let you know that the first paper will be presented by Bernard Groffman and Peter Miller of UCI. Then we will be followed by a paper from Bruce Kane of UC Berkeley and the UCDC Center and Karen McDonald, who's the director of the statewide database and election administration research center at UC Berkeley Law. And it was a consultant to the Citizens Registricting Commission. And the third paper will be presented by Nick Stephanopoulos, who recently joined the faculty at the University of Chicago Law School. And we will have commentary by Pam Carlin and Rick Pildes. Each speaker or each set of speakers will speak for 15 minutes. I'll be keeping the time over there. And then we will turn to commentators. To the presenters, if you are using PowerPoint slides, please come up here and use the mic. And otherwise, you can use the mics at the table. And please join me in welcoming our first panel. And that means that I get to give you some basic background both about redistricting and about redistricting commissions. And Peter Miller, who's actually the senior author of this paper, will then do the boring part, which is to actually provide you with the findings of the paper. So I'm going to start with the overview by describing the varieties of commissions and redistricting processes that we have. We have various kinds of nonpartisan commissions, civil service. We have nonpartisan action by courts. We have legislatively drawn lines, which is the most common model. We have bipartisan commissions. That is to say, commissions reflecting members from both political, major political parties. And some of these have a tiebreaker. That is to say, usually somebody selected by vote from within the commission to be the fifth member or the case member of the commission. And in some cases, even numbered commissions where there is no tiebreaker. And then we have California, the actual 2011 commission, which has already been correctly described as a rubed over mechanism. I will have some other names for it a little bit later. And last but not least, we have what I will refer to as the California dream model of redistricting. And I'll talk a little bit about exactly what that particular California dream model is. So moving to the next slide, where in the world can we find nonpartisan civil service redistricting? Well, if you are familiar with Carmen Santiago, then you will recognize Kerr. And you will recognize that the answer to the question of where can we find nonpartisan redistricting is everywhere but the United States. There are no, count them, no examples of nonpartisan redistricting commissions in the United States. Moreover, there is no, count it, no evidence that anybody in the United States actually has any interest in implementing a genuinely nonpartisan redistricting commission. So moving on to the next slide, what about courts? Well, when we talk about the role of courts, what is it that courts do? Well, basically they do essentially whatever they choose and more or less everything. They come in sometimes first before anything happens. If the legislature fails to act, they come in second statutorily in a number of jurisdictions when to review legislative plans or in the case that a bipartisan commission or a legislature fails to act in time. And they almost always come in after the deed is done. They come into enforce state law. They come into enforce the United States Constitution, federal statutes. They are the fat lady of redistricting. Nothing is over until the fat lady has in fact some. Now, if we look at the varieties of redistricting, first we have the kind of legislative battles where we see this as a kind of boxing match. And then we have really the two variations of bipartisanship. We have this line, which unfortunately I cannot claim is either mine or Waffles, but if I hug your elephant, you will kiss my ass. But that is one model of bipartisanship in which individuals essentially don't have it. That's the sort of standard model of bipartisanship in the, for example, United States Congress. Now, accurate as is this model of bipartisanship for most of the political universe, in redistricting it's very different. In fact, this particular model of bipartisanship has it essentially as backward. The way in which you should be thinking about bipartisanship in the context of redistricting is much smaller. What you should see is hands reaching out, one hand, the Democratic hand, delivering a little stream, a little tricklet of ours into the hands, the waiting hand with the R.E.P. on its tattooed on its knuckles. And what is happening here is that if you have two representatives, one a Democrat and one a Republican, they have a lot in common. They're good economists. They're believers in an exchange economy. Each of them has something the other wants and the other wishes to get rid of. So for example, if you are a Democrat and you have a Republican next to you, what is it the Republican has that she doesn't want or she doesn't want and you do well, Democrats. And similarly, for the other way around. So each side can benefit from, if it's only a matter of my ability to be reelected, each side can benefit from essentially transferring members of the other party to the adjacent incumbency district. So this has led my colleague, Wuffel, to describe truly bipartisan redistricting in the United States as partisan cleansing. OK, so now moving right along to how the different redistricting commissions operate. You have a bipartisan commission without a tiebreaker. And essentially, the winner is the person who ends up seducing somebody from the other side. That's one way to win. You see the Adam Neath picture here. And then the other option or another option is the sweetheart deal that I've already alluded to where essentially partisans on both sides agree to exchange and basically preserve a status quo or, and quite likely as an outcome, the process simply breaks down. Then you have a bipartisan commission with a tiebreaker and the tiebreaker really does change the dynamic of so-called bipartisan commissions. When you have a tiebreaker, generally speaking, the tiebreaker is in a position to bargain between the two parties and to essentially impose the tiebreaker's own criteria or the statutorily provided criteria on the parties. And the winner is the one who ends up closest to the referee, otherwise known as the bipartisan tiebreaker, the neutral member or independent member of the commission who is standing at the net using his criteria to determine which of the two parties has a plan that comes closer to the preferences or the net location. Then we turn to California. Now, we've already heard the California Commission described as a Rube-Goldberg concoction. And again, I just provide from Wikipedia, of course, some information about who Rube-Goldberg is for those of you who are not old enough to actually know who Rube-Goldberg is. But a Rube-Goldberg concoction is one which is overly complex for the end to which it seeks to achieve. And another way for those of you who are comparativist, as I, of course, now pretend to be, it is a, the California Commission is like a Jean-Tanbelle sculpture. And if you have not been to the Jean-Tanbelle Museum in Basel, I partly recommend it. Now, moving right along, we have the sort of final model for those of you who are movie buffs. For some reason, you may think that I'm not as fond of the California Commission as I ought to be. The young Frankenstein, now the nice thing about young Frankenstein is he's actually not the Frankenstein monster of traditional lore. He actually does. He ends up in bed reading the, in this case, the Wall Street Journal. Probably, in this case, it really should have been the New York Times. But I didn't have a picture that would match that. But it is the case that the California Commission stitches together these disparate elements, so partisan, bipartisan, civil service elections of citizen participation and lottery elements in an incredibly complicated way. And last but not least, we have what I call the California Dream, the Judy Garland, Mickey Rooney model of redistricting. Let's get a bunch of folks together and put on play. No, actually, sorry, put on a redistricting plan. And we want just like ordinary folks like Aw Shucks. Yeah, like, for example, the former head of the US Census Bureau, who was the chair of the California District Commission, just ordinary folks, Aw Shucks, right. OK, so moving right along, and here's where I'll end the two things over to Peter, just to remind you of what the stakes in the game are, I have here Nebraska on the left, on my left. And that's very rectangular, very rectangular, really pretty-looking districts. And then I have the infamous North Carolina film, which from some decades ago, and that shows you quite the limits of what can be done. But it does show you some opportunities for creativity and modern art. OK, Peter, your turn, next. OK, so as Bernie indicated, I'm here to just talk about the boring bits. Thankfully, this will be brief. So we can look at redistricting what Bernie has done in an institutional framework, and we can also look at redistricting as a set of outcomes, sort of the results. What comes out of the Rue Goldberg machine or young Frankenstein goes for his walk. So I'll just focus on three potential outcomes. First, the integrity of political subdivisions, usually city and county boundaries. Second, the creation of competitive districts. And third, you're trying to look at whether the public has any influence on what goes on in redistricting. First, this is a table of city and county splits from the 1990, 2000, 2011, 2012 redistricting cycle. And you can see the bold numbers indicated a map that's drawn by a commission, and underlying numbers indicate a map that's drawn by a court. And of course, normal-faced are legislative models. Two important points to identify here is that there's a general decrease in divisions over time, with the exception of the state of Utah. Second, we can see that there's a large decrease in divisions in cities and counties with commissions in 2012. So if you look at, say, the California Commission, for example, did a remarkable job relative to the California legislature in the 2000 cycle. Similarly, the Washington Commission was able to reduce the number of split counties. However, if we then take that information and say, well, look, QED, commissions will reduce divisions and political subdivisions. That may not be the correct interpretation, because if we look at Arizona and Washington in 2002, we actually see an increase in county subdivision splits. So it's not entirely clear that when we say what the outcomes that we ascribe to commissions are actually because they're commissions and because of other factors. Second, now we can look at competition in congressional seats. And this is just a table of a count of congressional seats with a 10-point margin between the winner and runner up. So effectively, this is a roll call of the 45-55 congressional races. And here we can see, obviously, California has a decrease in competitive seats over time. Of course, this is the 1990 cycle, and that there is some degree of competition in Washington under a commission model. When things change to the 2000s, though, we see that there aren't very many competitive seats at all across any of the Western states. So it's not entirely clear, again, that we can say that commissions will, by virtue of their existence, create competitive district seats. Lastly, we're looking at a public comment into the redistricting cycle. And this is a graph showing some data that Bernie and I are working on in another project looking at the rate of, what we are referring to is feasibly mappable comments that are adopted by redistricting authorities in a number of states. What's a feasibly mappable comment? We base this as two qualities. First, it has a location. And second, it has an instruction. And this is something that someone then says to the redistricting authority in a state. So for example, if they said, I want the city of Irvine to be kept whole and contiguous in a particular district, that would be a feasibly mappable comment. If I got up and said, I want my voice to be heard by my elected officials in my state capital, that's not a feasibly mappable comment. So we just took to the next step and said, well, what happens to these comments when they're delivered to a redistricting authority? And as we can see, you're right about 50% for most of these comments in terms of you can flip a coin to figure out if the comment is going to be adopted or not, with the exception of California. And California seems to be slightly above the other Western states in terms of adopting what people are saying in these commission meetings. So the bottom line, just three points to wrap up. The lack of competitive congressional seats could be due to a number of factors, campaigning, finance, all these, the other things that I'm sure we'll be talking about the course of the day. It is also the fact that competition is often a lower order criteria for redistricting. So once you get around to satisfying population equality, the Voting Rights Act, consiguous districts, these sorts of things, there isn't much leverage left in a district map in order to account for competition. Secondly, at least on these two areas, the redistricting commission model doesn't seem to be a radical departure from what we've seen, what legislatures can produce with district maps. However, there is some indication that the California commission is different in this regard based on the public comment. And we'll soon see in a couple of months how the election turns out as to whether or not the commission accomplished the goals that everyone ascribed to it when they passed these propositions. So in that spirit, I'll just leave you with Zhou Enlai, who is the Chinese Premier. In the 1970s, he was asked his opinion of the legacy of the French Revolution. And he had said, it's too early to tell. And so I think in that regard, we can think of the redistricting experiments and institutional reform with redistricting. It's a little too early to tell, but in a fullness of time, we'll find out. Thank you. My next. OK. Is this on? Because we're. I can find the presentation. Yeah. I'll help you get that on. OK. Well, I'll speak loudly to begin with. So the division of labor here is actually determined by medical conditions. Karn's recovering from her drugs last night. So I'm going to talk first as she recovers. And then hopefully she'll kick in at that point. First of all, and second thing is I need to clarify my status. And anybody wants to know why I'll explain later on. But I'm neither at Berkeley nor UCDC. I'm actually at NYU in Stanford. And if you want to know why, I'll be glad to tell you over coffee. So 21 years ago, 25 years ago, Dan Loenstein and Bernie Grofman and I, and possibly one or two other people in the room, I'm not sure. Anybody else is as old as we are. We're at one of the first redistricting conferences that I ever went to at UCLA. And at that conference, we spent a lot of time talking about redistricting criteria. Bernie had written a couple articles at that time. And I had written some responses. But it was in the context of redistricting neutral criteria in the context of legislative redistricting. Now, 25 years later, we're back to a discussion of criteria, an objective criteria, but now within the context of the California Commission and the proliferation of various kinds of alternatives to legislative redistricting that are starting to emerge across the country. What I want to do is focus with Karn on this issue of community interest. I'll start it off, but I tricked her into standing at the podium so I will then hand her the baton about a third to a halfway through. Because Karn was the consultant who had to handle these community of interest comments and bring them together into a coherent whole working with the Commission, and we have a commissioner here. So we have two people that know a lot more about the California process than I did, although I did watch, people thought I was sick, but I was watching the video of the redistricting. And even I thought I was behaving strangely, but I did actually find it interesting. So three things. One, what is a community of interest? Well, it wasn't one of the criteria when Dan ran his conference that we spent a lot of time on in those days. We were much more focused on city integrity, county integrity, compactness, et cetera. And community of interest, I think, was left sort of to the side because it was hard to define. And there's a literature, and Nick in his trilogy of articles discusses the history of community of interest in statutory and constitutional context in terms of articles that Bernie and others have written about it. And the basic idea is that there's some homogeneity of interest within a territorial boundary, has a perceptual component to be sure, but possibly when you look at it objectively, you can also say that it has measurable qualities to it, in terms of income, race, or whatever. But it's a fairly diffuse concept. Now, we might not be thinking about it except that in the construction of the commission through two separate initiative measures, the community of interest criteria was put into the rankings. And so suddenly now, voters had decided that this was an important criteria. And it's kind of interesting because a community of interest criteria is a homogeneity criteria. And homogeneity actually tends, if you take it very seriously, to breed electoral safety. So built within the coalition that put this commission into place was a tension right from the start between many who wanted the redistricting reform to yield more competitive districts versus others who wanted it to have this kind of community of interest orientation, which, by the way, is the major methodology of local redistricting. And Karn and I had seen that in various redistricting we had done at the local level, and I'm sure Doug has seen it too, that neighborhoods and neighborhood groupings and their perceptions of the neighborhoods are, number one, what's on the mind of constituents when you go around there. So now you have two ways you could determine it. You could determine it objectively. You can determine it subjectively. We'll start with the objective. The idea would be, well, maybe you can collect some indicators prior to the redistricting and you can use those objective indicators to sort of guide the way you draw boundaries. And Nick has suggested a way of doing this, so I'm going to pick on Nick. He's a nice guy and we're friends, so I've already told him that I'm going to be a tease. And basically Nick's idea is that you go to the ACS and you get the indicators, socioeconomic indicators, from the ACS. He also has a second measure which takes initiatives and works with that. That, of course, would be problematic from the point of view of the commission because they were not, or at least they decided through some combination of what they were told to do and what they wanted to do, not to look at political data except for voting rights matters. And so his idea is you take these ACS indicators and you run a factor analysis. Now, again, Bernie and I came into the profession when factor analysis was all the rage. It's kind of not used anymore for various reasons we don't have time to go into right now, but it makes assumptions that people found very hard to deal with and then we got into increasingly more complex ways of making these factors endogenous and it led to ever more complex ways of measurement. And so the profession has kind of walked away from that. But let's just say that what factor analysis does is it takes a cluster of indicators and it makes the assumption that underneath that is some unmeasured variable. So you might think of an intelligence test as you take your test and you have a bunch of answers on that test and underneath that is your verbal or your mathematical intelligence. And so what you're analogizing is the community of interest to that underlying intelligence and intelligence exam as the way to think about it. And so that's basically what he does. He takes these factor scores, you can then take them and create a weighted measure of homogeneity or difference. I forget what term Nick uses. And you can then compare different regions and areas. You can even compare districts in terms of the degree of their homogeneity or difference, et cetera. And so his suggestion, and there are two nicks. There's bold Nick and there's hedged Nick. Bold Nick is usually at the beginning of the papers and you read it and you think, whoa, he wants everybody to do what? And then hedged Nick is after he's talked to a lot of other people and he's kind of said, well, okay, it's in the mix there. Basically bold Nick is more fun and hedged Nick is more like the rest of us. So since he's new, I'm going to deal with bold Nick and he will come back and tell us more about what he really believes, but that's no fun. So I mean the problem, of course, with bold Nick is that the basic problem is turning measures into standards which has been the whole history of one flank of political reform which is defined the ultimate measure. The ultimate measure either is defended on its own merits because it has some inherent good like it helps a community realize its identity or it's something that you want because it handcuffs the political process and prevents mischief and the two of them sort of get conflated in discussion all the time. Now the problems that we have with bold Nick's suggestion as a standard, not as a measure, as a measure it's fine, but as a standard is that first of all, it fails to capture what people mean by community of interest and I'm going to let Karn and others comment on this, but basically when you look at the testimony, it's often not about socioeconomic things, it's about many other things and we have a table, environmental concerns, common cultural concerns, recreation, fire danger, ethnic community, high tech industry. Secondly, there are the limitations of the ACS, basically it's a rolling sample. They're a huge controversy over whether it captures properly for the Latino community, minority community, the true number of voters because the process doesn't capture the aging of the sample well enough. Their units of analysis problem, they don't really go down to a low enough unit of analysis for you to apply it to the very fine boundaries that you find that people define neighborhoods and areas by. Again, all these points Karn is extremely knowledgeable on and would be glad to go into. So we wanna just go show a couple of maps. Oh, okay, I guess. No, no, no, keep talking, keep talking personally. No, this is actually where I was planning on abandoning you, so thank you, Rick. That's exactly what I wanted to do. Karn, your drugs are over, go. No, actually, this was your section. I don't care, just, no, no, no. I think what we should do is switch to the very interesting question of how you tried to handle all the different, the various testimony. So why don't you just skip through this next part because we only have five minutes. So just go right into the whole business of how you collected the community of interest. Okay, is this a microphone? Yeah. Well, so here's a section of this thing. Of course it's on the other end of that wire. All of that wire, there you go. Last speaker drop. There you go. For a technical consultant, I'm not a very non-technical. So the section, of course, that Bruce just kinda skipped over what he mentioned earlier was that communities of interest obviously can't be the only standards that we're talking about. There are other criteria that are always, that communities of interest always have to be balanced against. And in the California process, this was in particular very difficult because communities of interest was given the same weight as cities and counties. So basically other jurisdictional splits. And so the commission constantly had to balance the trade-offs between keeping the county together, keeping the city together, or keeping the community of interest together. Let me go to the next one. So our, we really like public testimony, even though it's incredibly difficult to process and we have to slide on this in a little bit. But essentially what you're getting as opposed to the ACS data, our fresh data. You're getting testimony right then and there and people will actually tell you what's going on in their communities. We really believe in the bottom-up versus top-down methodology. So who are we to tell people what their community of interest is? You know, Bruce who lives in Washington can't tell me what my community of interest criteria are in my neighborhood unless I've talked to him about it. And I would presume to know what's going on in Justin Levitt's neighborhood or in his community of interest. And as we saw earlier in this little table, some of these criteria that I picked out that people really mentioned very frequently really cannot be found in ACS data. What do we know about fire danger up in some of the Hollywood Hills areas or so. And then of course variations cannot be perceived with world numbers when we have some maps that we wanted to show. So first of all, this one here, this map actually goes back to how communities actually grow outside of city and county boundaries, so other jurisdictional boundaries. And you find this all over California and this is also one of those maps where you see how oddly shaped these communities are. I mean, there's just some fabulous maps you can make for California with these really odd shapes and this always goes to my favorite criteria on quote unquote compactness when people are talking about compactness and they wanna also keep jurisdictions together. This is what you run into. So a lot of these dots that are outside of these jurisdictional boundaries, these are all people that actually affiliate with people that are within, sometimes there's communities that grow outside of the city boundaries and you will never find that out unless you actually talk to people. This particular map is a map of San Francisco and it actually shows neighborhood boundaries and there's different types of neighborhood boundaries and actually in San Francisco in particular, oftentimes people identify as a community of interest and also as a native hood and this actually shows how some of these units are split by census units. So it's very difficult to actually use census units to define communities of interest or neighborhood boundaries because you have all these splits. And then finally, when you're using ACS data, this is just per capita income for an area in Los Angeles. So when you're mapping per capita income in some of these areas, all you see is blue and how are you going to know where in fact you should draw your community of interest definition. You just can't do it just with ACS data. You need additional input. Now let's talk about really quickly about the methodology of data collection. This is something that Bruce and I have talked about extensively because there's a lot of problems with it. I mean, of course, we did it in public hearings. There were a lot of people that came out. Some of these people waited for many hours and then they didn't get to speak because the facility closed down. This is California. Sometimes we were sitting in hearings down here in LA where 800 people or so showed up. And of those maybe 200 testified but that's a lot of testimony for an evening. The commission also got submissions via mail and via email. People submitted maps. There were something like, supposedly there were over 20,000 submissions. There were some issues with how many there actually were. That's also part of the methodological problem here that what we did and what I'm not going to go into is who actually showed up because that's a different paper. Who showed up and who participated in these meetings. I mean, there was a lot of outreach done to ethnic communities, low income communities, that of course there's a particular subsection of the population that shows up to meetings. You know, I mean, I go to meetings because I'm really involved in my neighborhood but there are other people that just stay home because I go. So they're like, oh yeah, you tell them. Okay, good. So people were asked to define their community of interest to give geography, basically give the major streets and then the reasons for staying together. Why did they need to stay together? What kind of electoral benefit would they have? And people pretty much really complied with that. That was really good information that we got. Problems with the data collection are it's really, really time consuming. Of course, it's very expensive because if you're really talking to people you're holding a lot of meetings. You can't really have a cutoff when you're constantly releasing maps even if you're just releasing a couple or three drafts. As you're moving the lines you are going to potentially interfere with a new community of interest. And as people are paying attention if the line moves closer to my community of interest I'm going to come out and I'm going to testify and you may not have heard from me before because the line was just not close to me. And then of course there's processing time. You know, it's a really constrained timeframe that you have with redistricting in general. And even though the California Commission is going to have a little bit more time now I don't think there's ever going to be enough time to actually process all of this. I mean, you just have to basically be able to scale up. And of course it could all, you know, now that we know the problems it can be done better next time but I'm not sure that you'll ever be able to really do justice to everybody that comes out. Wanna summarize everything? No, I think that was perfect. I think we should let the next speaker speak. Thank you. Nick, I don't know if you want me to answer to that. I have some slides also. You can have mine. No, no, I'll just take it. I just want to pop you up there. Oh, you don't even have any slides. All right, hello everybody. My name is Nick Stephanopoulos. Before getting into my own paper I thought it would make sense to say a couple of things in response to Bruce and Karen. And I guess I'll do so more with the cautious Nick hat on. Although I'll try to leave a little bit of boldness in what I say in response. So first, I completely agree with Bruce and Karen that techniques using ACS data are not the only way. They may not even be the best way to identify communities of interest. I'm very much in favor of also looking at public testimony, at opinion surveys, expert reports, the views of community groups, et cetera. The point of my approach was never to come up with a single dominant standard that courts must use or legislators must use when they're trying to figure out where communities are. The whole purpose behind it was just to come up with some quantifiable proxy for figuring out how well districts do or don't correspond to underlying communities. And so the public opinion test, the public testimony I think is extremely interesting, but it doesn't provide that benefit of letting us figure out how good the fit is on a systematic, quantitative basis between districts and communities. With regard to the ACS data, I also agree that it's problematic for all the reasons that Bruce and Karen told us. It would be wonderful to have more recent data, more accurate data, more comprehensive data, but we just don't. However, I do think the ACS data is a little bit better than they give it credit for. So for example, they have a list of various community factors that people in California testified about. In my view, most of those issues that they identify are covered by the ACS data. ACS data is not just race, income, and then it's done. It covers dozens, hundreds of different categories. So looking through their table, common culture, there's lots of data in ACS about ethnicity and language. Ethnic community is covered by the ACS data. High-tech industry, aerospace industry, that's covered as well. There's all sorts of data in ACS about profession and careers. So in my view, the ACS data actually is quite a bit more robust, more comprehensive than you might think from Bruce and Karen's presentation. And also, I'm not actually sure if the results on the ground are that different from using ACS data versus using public testimony. So one of their examples is that, you know, the people really testified that the San Fernando Valley is very different from the LA Basin. And that's actually exactly what the ACS data shows you as well. I didn't come up with a new slide, but this is showing the old congressional district in the San Fernando Valley, and it's much better replacement. And you can see the San Fernando, this is a map showing socioeconomic status, where the deeper reds are more affluent areas, and the lighter colors are more struggling areas. And you can see the San Fernando Valley is clearly distinct from the areas to itself. It's a much more struggling area than the very affluent regions directly to itself. So, you know, is this all you would need to identify communities in that region? Of course not, but it does seem like a very useful start, and not one that would make sense to just close our eyes to. And the final thing I would say is that, you know, I don't think this is a theoretical and a legal matter that Bruce and Karen are right to dismiss the model of homogeneous districts and a heterogeneous legislature as just another permissible option with no particular appeal. I think that model is especially consistent with our system of geographic districting. It's especially consistent with the lines of Supreme Court precedent. And here in California, it's especially consistent with the actual language of the amendments that the people themselves voted in favor of a couple years back. But that theoretical dispute is a broader one that I won't get into now. So instead, I'll stop responding to Bruce and Karen now and dive into my own paper. I'm sorry your time's up. I just might get a more exciting part of the comments anyway. So my paper is about American exceptionalism in the arena of redistricting. I argue the US is exceptional when it comes to redistricting institutions, redistricting criteria, and minority representation. And I also argue that this American exceptionalism is very problematic in all three of these areas. And we would be well served to follow the lead of the rest of the world and consider changing some of our own policies. Because this is a panel on redistricting commissions, I'm going to skip the latter two topics and talk only about redistricting institutions. And I'll do so in three parts. First, I'll talk about what the actual institutions are that are involved in redistricting around the world. Second, I'll offer a conceptual framework that can be used to classify different approaches and to track changes in those approaches over time. And then finally I'll make the normative argument that the usual foreign approach is in fact preferable to our own on a variety of metrics. Okay, so I won't describe things in too much detail, but in the US, most states allow the political the elected branches, political actors to draw district lines. There are states that use commissions, but they're a distinct minority. The other notable institutional feature of American redistricting is the extremely high level of judicial involvement. As Justin Levitt has compiled some data, there are close to 200 lawsuits in the most recent cycle in 40 states. 10 states' plans have been invalidated by the courts. The numbers might be higher, because I think I last updated the slide a few weeks ago. So the hallmarks of the American system are this extreme political and extreme judicial involvement. Abroad, several countries used to redistrict in the same way that we do now. So through political actors drawing the district lines with extensive judicial supervision, that was the Irish model before 1980. It was the Japanese model before 1994. It was the Canadian model in certain provinces before 1996. And it was the French model before 2010. But now, pretty much every foreign democracy has switched over to non-partisan independent commissions. Unlike in the US, the foreign commissions are usually non-partisan, not bipartisan. They're staffed with judges, professors, government technocrats, and the like. They offer lots of opportunities for interested parties to participate and to offer their views on proposed plans. And usually, though not always, the foreign commissions plans become law without the need for legislative approval. As for the courts, they're also much less involved abroad. Sometimes, they're actually barred from considering challenges to district plans. When there is litigation, the courts are usually very deferential. And interestingly, in the Irish and Japanese and Canadian and French cases, the courts used to be active, but since those countries switched over to commissions, the courts have become much more independent. Okay, so this might just be the academic in me talking, but I think it's useful not just to describe the different approaches used abroad, but also to try to classify them. And I think it's helpful to think about redistricting institutions using two dimensions. First, politicization. So how responsible are political actors for redistricting, as opposed to non-political actors, like commissions? And second, judicialization. How involved in the process are the courts? So we can use these two dimensions to produce a matrix where we can put or place different countries models. And you can see the U.S. is the only country that is currently in the high politicization, high judicialization spot matrix. The American commission states are the only jurisdictions that are not politicized but still highly judicialized. Relatively authoritarian states are the only ones that allow political actors to draw district lines without any court oversight. And then, as Bernie said before, almost every country on earth is now in the low politicization, low judicialization with commissions drawing the lines, with very little court oversight. So that's where things stand today. We can also use this matrix to track past changes in redistricting models. And we can see here that pretty much every country on earth at one point redistricted in the same way that the U.S. did prior to the 1960s and the reapportionment revolution. So that's the political actors drawing the lines without any judicial monitoring. Then what happened was one set of countries adopted redistricting commissions and kept the courts out of the process. And so those countries moved up to the low politicization, low judicialization space. Another group of countries including the U.S. allowed the politicians to keep drawing district lines but then experienced surges in their levels of judicial involvement. And so they moved over to the high politicization, high judicialization space. And what I find very interesting is that the U.S. is the only one of those countries that actually has remained in the lower right-hand space. All of the other countries that have ever been in that space have moved out. They've adopted redistricting commissions and they've seen a reduction in the levels of judicial involvement and they've migrated over to the low politicization, low judicialization position. So the U.S. today is a dramatic outlier in terms of redistricting institutions but what's notable from this historical perspective is that this was not always the case. The U.S. was not always an outlier. Okay, so that brings me to the paper's normative argument which is just that the U.S. is very wise to consider following the lead of the rest of the world and moving itself to the low politicization, low judicialization position. The discussion so far highlights one reason why this would be a good idea. That that other position is far more popular than the American approach and continuously growing in popularity. So this is sort of the argument that all the Commonwealth countries, all the European countries are crazy in what they're doing. A second sort of intuitive argument for the foreign model is just that if you have properly designed redistricting commissions then you're not going to have the deliberate manipulation of district lines for electoral advantage. And so if what we mean by gerrymandering is this sort of intentional manipulation of district boundaries that shouldn't happen if you have a properly designed commission. To me though the most powerful argument for the foreign approach is less about intent and it's more about results. And I think here there's some very compelling evidence that if you look at the record both in America and abroad of redistricting commissions the plans they produce actually are more symmetric in their treatment of the two major parties and they actually are more responsive to changes in public opinion than our plans that are produced by political actors. There's going to be a few examples. Bruce was found in some earlier work that U.S. states with commissions have levels of partisan bias that are about 50% lower than U.S. states that don't have commissions. And the commission U.S. states also have levels of responsiveness that are about 20% higher than the non-commissioned states. Abroad the Australian states of South Australia and Queensland adopted redistricting commissions their levels of bias plummeted and their levels of responsiveness shot up. And the same thing happened in Japan when it adopted a neutral redistricting commission in 1994. Its bias fell almost to zero and its responsiveness doubled. So I don't have a whole lot of time left to respond to what's the most common counter argument against all of this which is just that the phrase independent commission itself is an oxymoron. So the argument is that politics inevitably seeps into the commission deliberations they inevitably get hijacked by political actors and so the same abuses that take place in the normal American system replicate themselves when commissions are in charge. And this strikes me as too fatalistic in our perspective for a few reasons. First there's pretty much universal consensus abroad that the foreign commissions have managed to maintain their independence over many years and they've done so even though most foreign countries that use commissions are parliamentary regimes. So their district plans determine who will control the entire government not just one out of three branches. Second here in the U.S. I think California provides a decent example that it's possible for an American commission to be independent as well. The Rube-Golberg mechanism seems to have actually worked out pretty well. And then finally if U.S. commissions were in fact being hijacked by political actors you wouldn't expect them to have the very positive bias and responsiveness numbers that they do have. So the record I think is actually quite positive that no matter what the results are in fact the commission results are quite good. So to me at least the fatalistic view of commissions is not persuasive and I think the case for ending our electoral exceptionalism is strong and I'll leave it at that. Thank you. Thank you. I'm going to turn now to two commentators. Looks like first would be Rick. Rescue the microphone here. Capture. So first of all I want to thank the University of California Irvine Law School for even existing. Just a brief anecdote connected to that. For many years I was on the University of Michigan Law School faculty. I had a colleague who was asked to advise Princeton University about whether it should adopt a law school. I think this was in the early 1970s or so. He advised Princeton against doing this because he didn't think there'd be a sufficient demand to adopt a law school at Princeton. One of the things he neglected to take into account as it turns out is that women would want to go to law school. And there was of course this enormous influx of women to law schools over the subsequent decades. So it's a real tribute to the vision of Dean Chemerinsky and his funders that this law school even exists and that it's been so phenomenally successful at establishing itself so quickly. And I want to thank Kazan of course for organizing the conference but also for all that he's done to help promote the field of election law. Rick's a great example of the proposition that you can do good and also do well for yourself at the same time in promoting the field and he's been tremendous over the last 15, 20 years in the field. And I want to thank the paper authors. I'm going to comment on Nick Stepanophilus' paper. I'm going to let Pam sort out the fights between the various co-authors here for the other two papers as to who's responsible for the good parts of those papers and the bad parts of the boring parts. So let me start off saying about Nick's paper and comedy about Nick's paper that I think it's a tremendous piece of work. It synthesizes an enormous amount of information not just on formal matters of institutional design in different countries but the empirical data on the performance of these institutions. He organizes the information into various topologies. You only saw one of them here that are very lucid and useful in providing comparative insight into how different systems deal with this basic question of the organization of democratic institutions and their design. And all of this work is in the service of one overarching theme which comes across very, very powerfully in the paper which is the theme of American exceptionalism and how unique the American approach to designing democratic institutions particularly with respect to redistricting although it's not true only there but how unique the American experience actually is. I want to tease Nick just slightly by noting that his comparative zeal lets him examine countries like Zimbabwe and Belarus and include data about their redistricting systems in his study countries which between them I think have had one democratic election in the last 50 years so there's a little bit of excess zealotry here but it's really a tremendous accomplishment here and I do think he succeeds in demonstrating the central point of his argument which is how exceptionally American structures are. Nick's paper is primarily descriptive. He's primarily trying to establish through positive and comparative inquiry of this point and the obvious question the paper and the project raises is what accounts for this dramatic American exceptionalism when it comes to the peculiar way we design our democratic institutions are uniquely politicized process with this intensive judicial review component and that's the question I want to focus on in part because I think it provides not just a window into Nick's paper but an overarching theme for the conference because the question of understanding what accounts for American exceptionalism in this area implicitly has to inform our thinking about what kinds of alternative institutional arrangements might be designed which ones might be possible what are the obstacles that stand in the way of the prescriptions that Nick is pushing so let me turn to that as I try to move my computer along here let me start with a couple of possible explanations for American exceptionalism in this area that I think do not hold up and I think Nick's paper helps demonstrate why they don't hold up so one possible explanation for our unique system of democratic institutional design is that it's a consequence of us having the oldest and most successfully enduring constitutional democracy in the world most modern constitutions by which I mean constitutions created after World War II and particularly the ones created in the what's called the third wave of democratization in the wake of the fall of the Soviet Union the transition from authoritarian government in South Africa to democracy most modern constitutions actually build in to the constitutional text itself a commitment to a series of independent electoral institutions to oversee various aspects of the democratic process election administration resolution of disputed elections sometimes districting process to the extent they use districts and other aspects of the democratic process and the reason for this is the reflection on the experiences that led to World War II and the emergence of the notion after World War II that one of the important commitments that modern democracies had to make is to what was called by some theorist militant democracy or the idea that democratic systems had to be militant in preserving their own democratic character that all democracies given that it was countries like Germany and Italy that had transitioned from democratic to fascist governments get all democracies potentially face the risk of capture from within by authoritarian or anti-democratic forces it became a shared commitment to try to design constitutional democratic systems in ways that would reduce the risk of that prospect occurring again and so among the institutions of militant democracy were courts that applied aggressive forms of rights-based judicial review but also independent institutions to oversee the democratic process now since the United States had its constitution created over 200 years ago before this experience had occurred we do not have in our constitution any kind of commitment to independent institutions to oversee the functionings and operations and mechanics of the democratic process we do eventually have a Supreme Court that begins to take on that role but it wasn't designed specifically for that role of the outset and we don't have any set of independent electoral commissions or equivalent entities that these modern constitutions create so is that an explanation for why American Exceptionals exist in the way it does well I do think it's a partial explanation but it can't be sufficient because as Nick's paper demonstrates there are many democracies that were created before World War II or that do not actually operate under written constitutions that used politicized redistricting for a long period of time but then actually transitioned away from that system to the independent commission based model of redistricting so it's not only modern democracies formed after World War II that had these institutions but democracies like the UK or Canada that existed long before World War II and did not have these institutions created from the outset in their systems those countries have in fact moved in this direction second possible explanation for American exceptionalism although it doesn't really explain the exceptionalism is a standard story of political economy that of course we can't get the transition to take place from politically controlled redistricting to independent institutions because the politically self-interested actors who now benefit from the existing structures and rules would for the most part have to agree to those changes except in states with direct democracy and of course they're not going to agree to change the rules under which they were elected and that explains why we're locked into this what I would call inherently pathological structure of politically self-interested actors controlling the electoral process now that also can't be a very convincing explanation particularly once you look at Nick's survey of comparative experience because again his story helps identify the moments at which probably starting with the UK after World War II and then moving even to the 1980s to Ireland in Japan and France more recently various countries despite the same political economy presumably have nonetheless made the transition away from politically self-interested districting so I want to suggest a third explanation for the electoral exceptionalism that is the theme of Nick's paper and that is what I think of as a kind of cultural explanation that more materialist or hyper realist friends of mine are likely to be more dismissive of but I think the exceptionalism resides fundamentally in cultural traditions and practices and self-understandings about the nature of democracy in the United States that are fairly unique to the United States and do not exist to the same extent in other democratic countries even in western European democracies that might be thought to be very similar to the United States we believe rightly or wrongly in a what I think of as hyper kind of understanding of what democratic self-government means we have a unique distrust it's a good thing I can't see without my glasses how much time I have left 25 minutes we have a unique I'll take another minute at the end to get a jive in at Bruce we have a unique distrust of expertise of independence of the possibility of impartiality and a unique obsession I would say with the need to have what's perceived to be democratic control over most of the institutions of governance or institutions that are exercising significant amounts of public power there are lots of manifestations of this unique hyper sensibility a hyper democratic sensibility in the United States for example our administrative state our administrative bureaucracy is far more under the control subject to the control of political actors the President of the United States the Congress of the United States than the administrative bureaucracies of most other modern or mature democracies particularly European democracies especially to make the comparison with a place like France we had a brief period of time in which we flirted with some commitment to a belief in independent technocratic expertise partly in the progressive era partly in the New Deal we created some independent administrative agencies and then we quickly walked away from that model and that experience and we've essentially created any independent administrative agencies of any major significance since the New Deal era because of the democratic critique in the United States of these kinds of institutions and the suspicion of these kinds of independent or neutral or technocratically run institutions that exists in the United States now this story helps explain I think or this explanation helps explain why the few reforms we've had in the area of redistricting commissions are particularly effective when they take the form not of turning over redistricting to people who are considered legitimate independent experts in other countries as Nick talked about the judges the academics, the technocrats but in California which first rejected all of those alternatives finally the voters approved a commission that was going to be a citizen run commission so even when we make the move toward a commission there seems to be a tolerance for commissions only if they're at least perceived to be citizen controlled commissions rather than technocratically or expert dominated sorts of commissions now there are two major independent institutions the United States has created historically and in some ways we were innovators for a period of time in creating independent institutions within democracy and one thing I want to address is why we no longer are innovative in those ways so think of the US Supreme Court number one that's the best example of an independent institution that the United States created and that countries around the world institutional democracies have accepted if we can create a US Supreme Court give it this power of judicial review accept its role why is there so much resistance to other forms of independent institutions but I think the story with the American Supreme Court in judicial review was much more complicated in the United States so although the Constitution in the 18th century created the Supreme Court by the 1830s between America that model was completely abandoned and all of the state judiciaries that were formed from that period on were made elective judiciaries and even though every country in the world looks at us and thinks this is the most bizarre way to create a judicial system ever since Jacksonian democracy we have had elected judges subject to democratic control moreover the debate about the US Supreme Court in the United States constantly involves these issues of the relationship of the court to democracy the counter-majoritarian difficulty should the court be taking on any of these sorts of issues and that is a debate that is uniquely American as well because in the European democracies which have constitutional courts they simply accept much more active and aggressive judicial review than anything we have in the United States about this democratic critique so my closing thought is we have a hyper-democratic sensibility and culture that may have perverse consequences we dilute ourselves into believing we have control through elected representatives or more directly over things like the design of democratic institutions we distrust experts or neutral parties and therefore we leave these processes in the hands of political actors who are free to manipulate in fact the democratic system for a variety of their own purposes but at the bottom it's this cultural belief which may be self-defeating and perverse that fundamentally explains the pattern that Nick identifies in this terrific piece about America's electoral exceptionalism Thanks Rick Sam Carlin for her conference Thank you so much for inviting me to the conference Rick it's always such a pleasure to go to a voting rights conference an election law conference because it really is one of the most marvelous communities of scholars we've heard a little bit of a discussion already of bold Nick and of hedged Nick and I'm hoping as the last person on this panel ought to be known as Nood Nick so I mean the title of this particular panel is do citizen redistricting commissions work and to paraphrase Bill Clinton it all depends on what you mean by work and the key line for me in thinking about this comes from Bruce and Kern's terrific paper just an aside on this which is when I go through papers I like to highlight things that I want to come back to and think about more and I went back and looked at their paper again when I was preparing my remarks and basically there were about four lines that weren't highlighted in the paper it's just so terrific and interesting but they have a line where they're writing about what communities of interest mean and whether they should be represented and they say the following whatever the advantages of communities of interest it's important to realize that it is linked to a particular form of democratic representation that is representation the representative as delegate the core democratic concept and so I think the overarching theme of my remarks here today is going to be that unless you have a theory of what redistricting should be like you can't answer the question of whether or not redistricting commissions work and the problem for us I think is at least in the contemporary United States we don't have an agreement about what redistricting should look like or what we're trying to accomplish so where you're trying to get it's very hard to know whether you've gotten there or not so in thinking this through because I think there are several different important dimensions I want to borrow a framework from Isaiah Berlin's Two Concepts of Liberty which is Isaiah Berlin talks about negative liberties and positive liberties negative liberties are essentially constraints on actors external constraints on actors positive liberties by contrast are ways of enabling an actor to achieve some particular goal that the actor is pursuing and I want to use this concept to talk about how we decide the criteria for redistricting and whether those criteria are working or not so we might talk about figuring out what redistricting should be by having a negative concept of redistricting by which I mean certain factors should play no role in how redistricting is accomplished and the two biggest factors that seem to play into a negative concept of redistricting are that politics should play no role in redistricting and more strongly that incumbent protection should play no role in redistricting so I want to focus on incumbent protection for a moment because I think it's paradigmatic that elections are about trying to figure out who the winner of an election is then the people who are seeking election shouldn't decide that first and there's a line that Sam and Rick and I have used in a variety of ways now for decades because we're now I guess closer to Bruce in terms of where we are in the life cycle of the academic than we were when we started although he's ageless so I guess this is all working out just fine I mean you actually might remember before the reapportionment revolution although he was just a baby then although many of you in the room have lived your entire lives under one person one vote so the line we often use is the ideology of America is that every two years people go into the voting booth to select their representatives but the reality of redistricting and elections in America is every ten years the representatives go into a booth and pick their constituents so the idea is that's wrong and preventing incumbents from redistricting is important to getting rid of incumbent protection as a criterion in redistricting Nick and Bernie's papers show that independent redistricting commissions probably do a decent job of minimizing incumbent protection relative to political redistricting that is either they do that because they don't care about incumbent protection or sometimes because the criteria that they have tell them that they can't look at things like the residences of representatives in redistricting and we saw this obviously in the California experience that an odd number of people ended up in paired districts in a way that you would never see across the spectrum you would see it in partisan redistricting with one party's representatives but not with both now one question I have here is whether the commissions do a better job here because of the criteria they're given or whether they do a better job because of the attitude they bring to the process that is to use a phrase that Nick talks about institutions versus outcomes is this that the institution inherently has a different view here or that the outcome is different because of the criteria they're giving because as Bernie says in his papers, Bernie and Peter say in their paper states using a commission to draw districts tend to have more developed and elaborate criteria for redistricting than states that use legislative redistricting so one might ask is it the criteria that are doing the work or is it the institution that's doing the work I want to complicate even this incumbent protection point just a little by saying to go back to Bruce and Karen's point that one could have a theory of redistricting in which incumbent protection does play an affirmative role that is that there is an argument in favor of it particularly when it comes to congressional redistricting where you're competing with other states and having seniority in your delegation to Congress can make an awful big difference I mean the reason why every square inch of Dan Rostankowski's district was repaved several times over was his seniority and one might imagine that Illinois decides that it's a good thing to have senior members of Congress or like so although it might be in favor of some game in some sense you could imagine a state saying we want incumbent protection to be taken into account at least to some extent in the way we redistrict so that's a kind of way of thinking about the minimalist or the negative conception which is we just want to get rid of certain things in redistricting we don't know what's good we just know what's bad redistricting commissions may do a pretty good job if all we're trying to do is eliminate the worst things by taking certain criteria off the table although of course one could imagine taking those criteria off the table and having a judicialized approach to seeing whether they've been taken into account contrast that with the maximalist position which is certain values should be pursued in the redistricting process that is there are affirmative goods that we are trying to accomplish not just taking some things off the table but putting other things on the table and putting them in the center of the table here I think there's a serious problem and redistricting commissions may not work in this in an important way because there's a serious disagreement in America today about what those values should be and just to list a couple of the big disagreements should districts be competitive or not well here and they personally have gone back and forth I imagine that if we had a boxing matchup Rick apparently has already had one you may have seen the bandage on his hand it's in a position which is known by friends of mine who are emergency room doctors as boyfriends break because that tends to be what happens when boyfriends in a fit of rage hit the side of the wall rather than hitting their girlfriends but I'm not going to go any further there on this but we could imagine seeing let's say a jello wrestling match between Bruce on competitiveness and Nick on competitiveness so there can be real disagreements on should districts be competitive should we try to maximize competition in districts or should districts be less competitive with more safe seats or should we have a kind of normal distribution competitive to safe seats second thing we have big disagreements on homogenous versus heterogeneous districts and here also I think Bruce and current paper takes issue with Nick's paper so if we don't agree on this how would we know whether a redistricting commission worked or not well you'd have to know do you want homogenous districts are they achieving that do you want heterogeneous districts are they achieving that and a third big one which Nick talks about in his paper but doesn't talk about in his world remarks here are racial and ethnic representation or color blindness in the process we have a huge disagreement on this in the United States today and we're going to see this playing out in the Supreme Court again in this round of redistricting every round of redistricting the reapportionment revolution we have had disagreement about this how do we know whether a commission works or not well you have to know whether you're trying to achieve color blindness and then ask did the commission achieve that or were you trying to achieve racial and ethnic representation and as Nick says on page 51 of his paper and it's a kind of elephant in the room of these commissions if you don't focus on minority representation you will not get it in a single member district system you have to make some choice on this and until you make that choice you can't really measure whether a commission has achieved its goal or not and finally there are disagreements about whether partisanship and partisan consequences should play some role in the redistricting process that is suppose we had a redistricting accomplished by a commission that thought about where it was trying to go and they achieved a plan in which there was a dramatic deviation from the seat vote ratio would that be good or would that be bad well you'd have to know again what you were trying to accomplish before you could figure out whether you'd accomplish it so the key and I think counterfactual question in some ways is if there were a consensus about the values we were trying to achieve would an independent commission be a better or worse way of achieving those because although Nick in his paper talks about these as separate axes or separate dimensions they are linked to different dimensions some end goals or end states are more easily achieved by a commission than by politicians but others really aren't and so we might ask what we're trying to achieve are we trying to achieve voter confidence are we trying to achieve certain outcomes are we trying to use process as a way of achieving a particular substance or is the process itself where we're going so my last point is to try and situate this more broadly in the overall theme of the conference and the overall theme of political the regulation of politics in the United States there is a tension and I think Rick's remarks capture this as well between top down and bottom up ways of thinking about democracy and what we're trying to achieve for example as Karen said who decides what is a community of interest and what doesn't you could have criteria that are set from the top down or you could have a more organic process in which people come and tell you what they consider their communities to be Nick has a more top down approach I think overall and I think Bruce and Karen have a more bottom up one obviously you could have systems that are even more bottom up one of the discussions of alternative voting systems and Rick has a little bit of this in his paper and I'll have for even more bottom up system in which voters redistrict themselves essentially rather than being assigned to districts there is a link and this is the final point I want to make between all of the different elements of the system and Rick was also making this point so for example there's a relationship between redistricting and campaign finance the way that campaigns are financed depends on how districts are drawn and what electoral system you use may determine what kinds of campaign finance arrangements are available or not the same thing is true for election administration and Rick talked in his remarks about the hyper democratization of the United States but I want to identify something else that I think makes it really hard for us to have the kind of independent nonpartisan experts and that is the hyperpolarization I mean it's hyper hyper hyper right so hyper democratic and hyperpolarized which is ask yourself this is there anybody in the room today who really believes there are nonpartisans when it comes to redistricting that is that judges are nonpartisan really or that experts would be nonpartisan really once they realize the partisan consequences of the plans they might draw Rick referred to the United States Supreme Court as an independent organization that might have been true at one point I think that's no longer true and it's less likely to be true in the future in part because our hyper polarized politics picks the people who are on the Supreme Court and therefore the Supreme Court follows the election returns in a longer term and more literal sense that the court we get is a product of the politics we have and as Rick has shown in some of his other work most recently in the California Law Review piece hyperpolarization may be here to stay in American politics and therefore it is more likely that every institution over time will become hyperpolarized so I am going to yield back the last minute of my time so is that a surprise to you I thank the gentlelady from the House we have about 15 minutes 16 now I thought we'd start if any of the panelists want to address any of the comments that were made or I will open it up open it up you might ask the commissioner to say something we have a commissioner from we happen to have Marshall McLuhan here in the room with us not to put you on the spot well I'm not sure I have a question actually because we weren't particularly good about limiting or trying to limit the kinds of information we might get on communities of interest there is a constitutional definition that was further refined by the second proposition so we got a lot of information that was at least in the public's mind all over the map because you have for example a lot of folks saying this is the San Gabriel Mountain community of interest geography that's about 700 square miles and millions of people versus the more specific local community of interest that might be defined by very subjective criteria or simply an expansion of neighborhoods and subsets of cities so given sort of the bottom up approach versus the top down approach we've been thinking about on the commission should we look at say having an expert commit not to certainly preclude it all but developing some sort of hybrid model and I'm wondering if you think that there is some sort of middle ground even if it's a commission or a legislative process that sometimes melds these two top down versus bottom up approaches that's a big question for an early morning I think there might be an opportunity for some sort of a hybrid method I think we don't know what kinds of data we're going to have available for the next redistricting the ACS is obviously we're not sure whether it's going to be funded whether it's going to be funded until you know until when they're going to have better data for sure I mean you can have an export coming but an export on what there is a question about what a local community of interest really is the definition for local can be widely debated you could probably get 10 papers just out of this room on what that means so I think in the end you're always going to be back to you know collecting community of interest testimony on some level could you refine it further I think there was a lot of there were some questions about whether the examples that were in 2020 that were actually given were were in fact you know constitutional criteria that had to be followed or whether they were really just examples so that there could be further examples or further you know a wider range of definitions that's not something that we've really really worked out I think but that's a really big question it's a paper this is a very generous panel in terms of critiques of the commission I think there have been more scheming ones out there so it was very generous just a point is that the commission is not an ordinary citizens commission if you look at the selection process I think Bruce has identified it's like the college admissions process with a lot of interviews and it is an elite group it's a much higher educated group than a typical California resident and to the extent that there is a technocratic expertise it is on this particular commission it's not a bunch of redistricting experts necessarily but it's a high level of experience and high level of training which I think is a good thing but it raises questions about what is a democratic institution on the local life if you're trying to be representative of a particular jurisdiction of its state or a locality Heather? So this is a question in attempt to divide hard and Bruce it's hard actually But my 25 year old law student is far more cynical than you about the possibility of the sort of bottom up redistricting so she also did what you did this paper is coming out to a large community so you see your line but she watched the same hearings that you did and she took notes on all the things that could be done to manipulate public testimony like this so not that she wanted to suggest that she was manipulated in this instance but she's someone who's done a lot of political organizing and she thought you could create a grass top set of testimony it would look a lot like just what you would sort of expect but they would be doing the things that the political elites want so in some senses I'm asking questions about the relationship between hands tops down and bottom up this looks pretty easy to organize and so when I saw Karen slide about her work I would get high when I see that because I'm more cynical than you it turns out and so the question what makes you think you can trust the bottom up stuff when it's not coming from a really local level where there may not be much of a senate to do but when we're talking congressional redistricting there are big resources there right so the big resources used to go into the lawyers and the next round once they figure this out they'll go into figuring out how to create sort of grass top set of testimony that's plausible to you how do you know you can sort it and then just to defend Nick a little bit the reason why we always come for objective criteria you may not think he's found the right one is because at the end of the day when Karen says there are a million different definitions and there's quite a million different things that are being said to me and I just sort it out and find a community of interest well it's great when it's current right and if we could reproduce current gender across the country to do this I feel pretty comfortable about the redistricting process but we can't which is why we're often looking for these objective backstabs but it's not like I don't understand why people are looking for objective criteria I'm just I'm not I'm not I'm not I'm not I'm not I'm not I'm not I'm not I'm not I'm not looking for objective criteria I'm just saying that it doesn't work and this particular method does not work at all and there are many reasons for why it doesn't work and I think we're going through some of them in this particular paper and after I heard Nick's comments I could write another paper for why it really doesn't work but anyway in terms of public testimony I mean this is what your student is doing is basically she is doing the academic version of the pro-publica piece that was actually widely criticized in the California media have actually rarely seen as much, you know, media attention, negative media attention to a colleague's piece than to this pro-publica piece. It was really discredited. But I'm sure, but this is just, this is one piece. I mean, the other piece is basically you select a commission that, you know, weighs the public testimony. I mean, these guys were not naive. They looked at some of this public testimony, and some of it was a little bit more obvious than others. But on some of it, it was pretty clear that people were really, you know, grassroots actors that came out. I mean, there's obviously a problem in getting a representative sample into these hearings, absolutely. But, you know, what's the alternative? I just don't think that the NIC version is really the alternative. I mean, it's always a struggle of coming up with a more better or more perfect system. And you know, hopefully we can cook something up here that will improve upon it. But every public hearing you go to, if it's redistricting or if it's your, you know, local city council hearing on the neighborhood playground, you're going to get a certain type of actors to show up. That is just the nature of the beast. I think it's also interesting, the foreign experiences confirm Heather's suspicion that, you know, when you open up these redistricting hearings to various parties in Britain, in Australia, et cetera, the parties that are most involved that have the resources to present district plans, you know, with detailed alternate configurations, it's always the major political parties. And so, you know, you look at what happens with public testimony in Britain, it is completely dominated by the conservative and Labour parties. The way they avoid sort of just becoming hijacked by the parties there is that the commission itself has a lot of resources to come up with its own independent appraisal of where community boundaries are. So there are, you know, demographers, statisticians, social scientists who work for the commission. And, you know, I don't think those experts on the commission have to follow my model or anybody else's, but I think it's very important that they actually have some real expertise in identifying geographic patterns, figuring out what the underlying political geography of the nation is like, and it's that permanent expertise in the commissions that allows them not just to be the puppet of whatever testimony comes in from outside observers, because those outside observers are very likely just to be the self-interested political parties. John Johnson from the Rosenstein, question on the non-partisan administration in other countries. And we hear about this a lot, why can't we model what Britain has and New Zealand has, things like that. And I think, especially the Commonwealth, they have an administrative state. You know, they have people that go to college and go into that channel, and I'm not an expert on it. In the US, when I look at what do we have similar to that, I think we have public employees and members of public employee unions. It just doesn't seem to translate. I mean, is that the argument that we should take career civil servants, which would be the advocates wording, the opponents wording would be public employee union members, and put them in charge of this? Or am I missing something in terms of the parallels? Don't kneel. I thought I would do it one more time. So it's not like the foreign countries have this massive stock of trained redistricting experts. You know, there's no redistricting school in Britain or Australia or Canada that churns out these commissioners. The people who sit on the foreign commissions tend to be, as I mentioned before, generalist judges, political scientists, statisticians, demographers, government officials who work in departments focused on sort of political geography issues. So we have analogs to all of those sorts of people here in the US. Political scientists sometimes are appointed as special masters, as are law professors. We have generalist judges, just like the Commonwealth countries do, and we do have some neutral government officials in sort of pretty obscure backwater departments that are just in charge of statistics and geography and demography and things like that. So I take the point that our administrative state is quite different from that of a lot of other countries, but I don't think those other countries are relying on that administrative state to staff their redistricting commissions. I think they're relying on the sorts of people that do exist in the United States. Fixation in California is a great example, seems to be, on doing everything from the bottom up. Now, it's an odd move to hear this discussed by political scientists, because if public choice teaches us anything, it is that as soon as you invoke the public as a single resource that is going to express its will, it is going to be overwhelmed by special interests who will exercise the powers of public choice, tells us that they will have this in the circumstance. It's just the erosion of the demand, this faith that we have, that the public has a sense of redistricting. I hope not. I hope that they have families. I hope they have families. This is, look, you have two kinds of people who really passionately care about redistricting. People who have a stake in the system and lunatics. What you described about these public hearings confirms that. So you want bottom up, you're going to get the combination of special interests disguised as the public, and you're going to get deranged people to watch the cable access television about city council meetings, watch, come to a fairness hearing and class action. You go to any place where there's a public arena offered, it's an excuse for lunatics to rattle about whatever the days of conspiracy against my name. So we don't have to do the hard problems, which is, look, you do have to make decisions about the criteria. That is absolutely right. You do have to decide what are the important values you want to promote, and then you have a metric to decide. You also have to decide what the fundamental, whether the insiders or you put a buffer between the insiders, it makes it harder, not impossible, but harder for them to control the data. And then you can have metrics to determine whether it is working or not. In order to avoid the hard question of what are the objectives, what are the metrics you want to use, we valorate participation, which is a nonsense variable. If a bad plan is produced with every lunatic in Southern California testifying in a public hearing, what do I care? What do I care? Why is that the guarantee? And that's, I think, the participation towards side of this, especially on something technical like redistricting, can't overcome the question of what are the objectives that we're trying to realize. I just wanted to clarify something. It sounds like this was a, when you guys are talking about it, it sounds like this was a complete bottom up process and it wasn't. Communities of interest is one of the criteria. So we have equal population, we have compliance with the Voting Rights Act, and by the way, you do need some public testimony for compliance with the Voting Rights Act. Then you had contiguity, then you had criteria on four, which is the famous one, that had everything on the same line, so everything was weighted the same, cities, counties, cities and counties. So those are jurisdictional boundaries that are already given, so that's not bottom up, obviously. Then there's communities of interest, and then also neighborhoods. Some of the neighborhoods were collected from the jurisdiction, so they were actually not necessarily bottom up, they were actually top down. Yeah, I was going to make that point that we're just talking about the one component in all of this that was bottom up, most of it's been imposed down by the courts and others, by the voters through the redistricting initiative. But there's a second point, which goes back to Heather as well, which is insofar as you're going to have this bottom up component, then the answer is not that we're that we're seeing it through the lens of a public interest framework, we're seeing it through the lens of a pluralism framework. And so the point, the answer is always in American democracy, that we expect manipulation, we expect self-interest, but we set up mechanisms that allow them to compete with one another. So the problem would be if only one side did the manipulation. But that's not what you expect. You expect organization on both sides. You've got people like Doug, who are very smart and very knowledgeable, that were testifying regularly at the hearings. And you had a whole bunch of Democrats that were in various guises showing before the hearings. And so they get both sides. And I would think that the commissioners would try to look for the places where the two views overlap, but there are some times that they don't. Their first hearing was all about whether the North should be done East-West or should be done North-South. Well, underneath that is fundamental questions about whether you preserve environmental interests or whether you have this kind of North-South rivalry going on. Well, you know, that's a tough one. And it may be no overlap, but there is where they're going to be overlaps between the interests of... And I think you just can't take the judgment out of redistricting. And the attempt to find... Again, this is the point that we ended the paper on. And my 25 years of listening to these, it all boils down to this. We need to have measures. We need to have metrics. We don't need to try to have standards where it's just to take one of these measures and impose it as the answer to the whole process. We cannot deny that there's lots of judgments that have to be balanced. Redistricting happens to be a small, repeatable example of political design problems, which are that all political design is endogenous. All of it involves choosing values. And when we do it in a Constitution, it doesn't happen every 10 years. When we do it in redistricting, unfortunately, we open up Pandora's Box consistently. And that's the problem. So let's say, yes, we need metrics, but let's not try to find simple, you know, take those metrics and turn them into simple standards and think that we've solved the problem. What you've done is imposed value judgments on the process. I'll say one thing. I like your comment about the only people who care about redistricting are redistricting people in lunatics. Well, that's the same. Really the same. They're all lunatics. Because I spent the last year flying around going to a bunch of redistricting hearings and I've gone to, I think, 23 in 12 states or so. And I was actually amazed by the relative lack of lunacy. I mean, there was one hearing in Arizona that was sort of a the sideshow took over the circus. But for the most point, everywhere else, I'd hate to say they're boring because I don't want you to leave the room thinking that all I am is a boring person. But there are all these boring hearings where people come in, say they're bit, and leave. And I want my schoolyard to be in my district or something. So there is this, I guess, reserve of people who are able to speak on redistricting and also have lives outside of their other thing. But the other point that Heather brought this up is that she brought this asterisk testimony. And at the same Phoenix hearing, there was a wonderful person who got up and said the criteria that you have before you are X, Y, and Z, now the Republicans are going to get up and they're going to talk about how important it is to keep communities together. And the Democrats are going to get up and say how important it is for competition to be introduced. So just so you know, I'm just decoding the rest of the testimony you're about to receive. And he sat down and the next guy got up and said, we need to have competitive districts. And she sits down. The perfect microcosm for the chance of these three people getting up in this order and saying what they were going to otherwise is zilch. But there is some degree of coordination and orchestration with the testimony, but I leave it to the commissioners and the other people around to try and filter out or just reduce the weight on a particular comment if they know it's coming from other people in an identical form. Last word. Last word is, there is no such thing as democracy. There is only guided democracy. And the California commission is a marvelous example of guided democracy as was the case with all the Citizens Commissions in Canada that are so much touted. When you look behind the scenes you see a lot of very smart people and people who are very knowledgeable or become very knowledgeable about the particular subject area, taking a complicated topic, taking public input, taking statutory requirements, taking bad advice from lawyers in some instances witness the comment in the Karnan and Bruce paper, and trying to turn it in the best way they can into something that looks sensible. And I think that's about as much as anybody can realistically expect. And I agree with all the comments that suggest that we are talking about a multi-valued process in which we are never, ever going to get agreement. But in California the people rightly or wrongly spoke and they listed criteria in a certain order and at least whether it's Frankenstein stitched together or not the commission did its damnedest to actually implement those criteria in the order that Californians told them to. Alright, the next panel is going to be on campaign finance it's going to be at 1120. In the meantime the restrooms are that way the coffee and snacks are that way. Please join me in thanking the panel for this. Hi, I don't think I'm back in person. Hi. Welcome back to our second session of partisanship and campaign finance. We are going to hear two papers the first by Michael Frans of, I guess they said to join No, Bowden. Bowden, okay. I mispronounced Waukesha County yesterday. I can't get on anything past the West Coast. Michael Frans will be presenting the first paper at Jeff Milo of the University of Missouri. Is that right? Who is it like you're running for office? We'll be presenting the second paper and we will have two commentators, Richard Brafalto of Columbia Law School and Dan Lovenstein of the U.S. School of Law. We're going to let the few extra minutes because we have just the two papers on this panel and we're going to start with Michael. Okay, thank you very much. Thanks, Rick, for the invitation to present today. Bowden College is in Maine and so I don't know if you have looked at a map of the United States recently, but it's a long way from here and my arms weren't tired yesterday but I sure was and so I just want to thank Rick for the opportunity and to be surrounded by so many distinguished scholars in this area and to have the chance to meet folks who do some great work is really a great honor. So my focus for today is on the Federal Election Commission which I've studied for roughly 10 years or so and I'm going to talk a little bit about advisory opinions that are issued by the FEC and offering some legal guidance to people who are sort of confused about what they're allowed to do. Now I have a friend who studies the bureaucracy and he's prone to saying that he as a result of studying the bureaucracy loves bureaucrats and I wouldn't go that far in terms of the Federal Election Commission but I do like the Federal Election Commission. I probably like it a little more than I could Facebook like it if they had a page and I don't like like them but I do like them so somewhere in the middle there. The reason why is because I'm actually quite sympathetic to the challenge of enforcing and administering campaign finance laws especially at the Federal level. There's actually a lot in the law that's ambiguous in terms of congressional intent especially as the technology develops and changes. There's the ever-present gargantuan challenge of balancing free speech rights and civil liberties with the goal of preventing corruption and then of course there's the very bitter partisan conflict that exists in Washington these days and my suspicion is it's actually not very easy to be a commissioner and so I do have some sympathy in that regard. Now this ambiguity in the law is what motivates me to study the advisory opinions because these are actual requests that people have about whether they can do some sort of proposed campaign activity and they concern areas of the law that are gray and actually quite fascinating many of them are quite fascinating and so the FEC has issued roughly 1500 or so advisory opinions since 1977 this is the total number they've issued by year. They did some in 75 and 76 but my paper today is going to talk or my talk will focus on the 77 through 2012 period and you can see here that the frequency in the early years of the Federal Commission Commission they considered quite a large number of requests every year and then that number has tended to decline over time such that by 2012 we're still on going we'll get a little close to 30 little past 30 perhaps but that'll be about it. So now as these frequency of opinions has actually declined and what these represent are actually letters from requesters to or from the FEC to a political actor giving them legal advice on whether they can pursue some campaign activity they haven't just gotten shorter they've actually gotten also longer and so these are the average length per year in words for advisory opinions issued by the FEC to the requesters and so in the early part of the 1970s early 80s they were less than 1000 words by 2012 this is the year with the longest length advisory opinions issued on record they're over 2600 words on average and not only are they getting longer we're also treading more legal ground this is the average number of advisory other advisory opinions cited by the commission in issuing their opinions in a given year and so in the early years there wasn't much background to cover so you've got somewhere between one and two but by the time you get McCain fine gold in 2002 the FEC is citing somewhere around seven other opinions in their decisions after McCain fine gold that number drops and this fitted line here is just a five year moving average the number drops and bottoms out in around 2006 but as questions pertaining to McCain fine gold and other areas start to get asked over and over again in different contexts the number of citation goes back up and this year we have close to six advisory opinions on average cited again per this year and this is actually comforting to me when I look at this particular graph because one of the things it suggests is that advisory opinion requests are not about idiosyncratic or McCain's sections of the law where there's simply no relationship to anything else that anyone else is doing but they're actually about areas of the law that people might have some ambiguity on and they might have relevance to other political actors in the in the political environment and so this is seen by the fact that the FEC is saying well you want to do this proposed activity well look at what we've decided on this other areas as well that has some relevance to your question and so by and large the questions that are being asked are in many cases big deal questions that also have some meaning to other political actors across the across the scene now one of the things we can do in looking at advisory opinions is a whole bunch of things or if you're interested in the landscape of ambiguity you might call it but and one of the things you can look at is the type of people making requests and so for example in split this up into roughly three time periods in the late 70s and throughout the 1980s candidates accounted for about 45 or 44 percent of the requests that were asked interest groups accounted for 46 percent and parties were about 8 percent but as you move forward in time candidates account for a smaller share of the advisory opinion requests and parties account for an increasing share of the advisory opinion requests and this makes sense when you think about the way the law has changed over time for interest groups there have always been questions about what is a regulated or unregulated group or regulated or unregulated behavior and there's a lot of interest groups and they've been out there asking questions consistently for parties they've actually seen the law change through congressional legislation in very dramatic ways with McCain and Feingold and through the jurisprudence that's out there and so the parties have come to ask more questions as there's been flux and change in the laws but the paradigm for candidates has roughly remained the same things have changed of course technology has developed but by and large candidates have been abiding by contribution limits and reporting requirements for a long time and so their share of the overall questions asked has declined as a result still even into today they still ask interesting innovative questions but a lot of the big stuff has already been ground that's been well traveled I suppose so this can tell us quite a bit about the landscape of campaign finance but ultimately what we really want to know and what would be really interesting for this discussion is whether advisory opinions can give us any purchase over how effective the agency is as a commission that's charged with administering and enforcing campaign finance laws and I think this set of data can actually give us some way of assessing that in two ways one we can look at the votes that commissioners take on advisory opinions to see if there's been an increase in conflict the other thing we can do is look at the actual content of the FEC's advice and to see what kind of guidance they're giving and then from that we might be able to make a judgment about the effectiveness of the commission overall so the FEC has issued or made public its votes on advisory opinions back to 1990 and so for example this graph is the percentage of registered votes on the final vote taken on an advisory opinion request that are dissents so what the FEC has before it in this particular case is a letter that it wants to send out to the requester and they'd register their vote on that letter to send it out and this is the percentage in any given year of commissioners that say I don't like this letter I don't like this opinion I'm gonna say no and for most of the 1990s there was about a 6% dissension rate but that has increased in recent years 2006 2009, 2011 and 2012 stand out as the years with the highest rates of dissension up past 10% 2011 was the highest one on record there's more conflict in the way that commissioners are resolving these these requests this is the rate of unanimity in advisory opinion votes for a long time and we don't have the data into the 1980s the commission decided things on a relative consensus model across party lines and even into the 1990s on average about 80% of the advisory opinions were issued unanimously that has dropped in recent years to about 70% and in 2006 it was just a kind of interesting outlier year where 50% of the issued opinions had some dissension so there's increased conflict on the commission in terms of how to issue guidance we could move back past 1990 and look at rates of deadlock on the commission in terms of the percentage of cases where they're unable to offer advice they're unable to get to 4 votes since it's a 6 member commission and that percentage of deadlock has also increased in recent recent years they always deadlock to some extent most of the most of the time there's some deadlocking that happens on the commission all the way back to to 1977 there's questions that's blow on partisan lines debate about where the law stands but it was between 2 and 4, 2 and 6% in any given particular year maybe 1 or 2 or 3 advisory opinions in 2012 and in 2010 we're seeing or 2009 we're seeing rates of deadlocking that are much higher than we've seen in the past and so overall we're seeing more deadlocked opinions and more conflict and now to some extent just as a cautionary note here about this sort of thing qualitatively and quantitatively one can make the case that this type of graph is actually understating to some extent the amount of what we might call dysfunction on the commission if we want to call it that because what I'm doing here by aggregating up by year and looking at all the opinions together at one time is comparing some opinions which are probably apples and some opinions which are probably oranges and what's actually happening in an in an era when the conflict is increasing is that they're going to conflict over the areas that have some major consequence politically and so in 2012 they're deadlocking over things about super PACs, they're deadlocking about things over disclaimers, for ads this stuff is really important and they're not deadlocking over whether or not the Alaska Free Liberty Party is an actual party and so to some extent it's actually understating the amount of potential conflict that exists and why that conflict might have consequences for political actors across the scene and that's important to keep in mind here I'm doing mostly a quantitative analysis of this but the qualitative assessment here is really really powerful. Now of course you can take the flip side of the coin and say well 16% deadlocks is great they don't deadlock on 84% of their cases and they issue 70% of their decisions unanimously even today the FEC works fine and so we can have that debate about how we want to assess the power of the data. So that's sort of the votes that the FEC has taken on these matters but another way to assess the commission is to look at the actual advice that they're giving to the people that they issue opinions to and so they've done this 1,500 different requests back into 1977 and I coded them on whether or not the opinion they give is one of three outcomes. One do they approve of the request that a requester makes in other words does the FEC say you want to undertake some political activity we've looked at the law you can do it. In that sense about 61% 60 to 61% of the issued opinions have been approvals they've been wins for the requester. Another way to code this is to look at losses FEC says you want to do some sort of activity no the law does not permit you to do that and about 15% of decisions have been decided that way or the FEC might offer mixed outcomes where they say you can do X but you can't do Y and so I coded that on a three category scale negative one to one with mixed outcomes being zero and if we look at the pattern over time I think we see what I would classify as three distinct FEC errors. The first era into the late 1980s was an era where the commission actually took a fairly aggressive stand at enforcing camping finance laws if you read them qualitatively this was a period where it seemed as if all the commissioners had some agreement that congressional intent was important and we want to put up somewhat of a wall to innovation and their approval rates actually approval rates for requesters actually declined until the late 1990s then the game shifts and approval rates skyrocket up to a much higher rate doubling between the late 1980s and the late 1990s FEC is much more permissive they're saying things like sure go ahead and do it innovation is important who are we to step in the way of the political process and people who are asking questions with innovative and interesting ideas and it looks as if in this third period the FEC has returned perhaps to a much more or slightly more aggressive stand but that's actually misleading because this recent downtrend is not the consequence of increased aggressiveness at saying no we're trying to tamp down on innovation or on innovative requests it's actually something I didn't expect when starting to code this a consequence of there being much more mixed outcomes well those mixed outcomes not being you can do X but you can't do Y but mixed outcomes that say you can do X we can't agree on Y and so for example in the last four years the FEC has issued 21 advisory opinions where they've offered Y code as mixed outcomes mixed advice 14 of those have then opinions issued with a deadlock embedded in the opinion so you can do X we can agree with four votes to do Y and so as a result it's pulling down this success rate since those are coded as zeros and so it's an interesting third period of FEC decision making where this sense of what is happening in the commission is a conflict that's reaching into the content of the decisions of themselves and there's a bit of an asymmetry here in success rates across requester types there's a lot of information on this graph but this shows success rates for interest groups candidates and parties in a seven year sort of moving average and you can see in the 1980s late 1980s interest groups face the most pushback from the FEC where candidates and parties do quite well relative to that for interest groups is quite stark such that by the end of the 1990s into the early 2000s interest groups are winning at higher rates on average than candidates and parties and then you see the sort of turn back fall off the plateau so to speak for interest groups and you do see a decline to some extent for candidates a lot of that a consequence of the increased partial deadlocks that are out there although I should add as a footnote that reading these case by case here noted for candidates in the early part of the 2000s is a consequence of the FEC at least in this particular case attempting to try to restrict what candidates can do with their campaign funds they're a little bit more suspicious of candidates in recent years that's the only instance we have perhaps of an FEC that's a bit more aggressive by contrast a lot of this larger trend here that's happening is the consequence of what I call partial deadlocks in their opinions and so what we end up having here is an FEC that has a lot more conflict on votes, a lot more deadlocks and a lot more partial deadlocks that are offering to requesters some mixed set of guidance here some mixed set of guidance and some muddle device perhaps and we might interpret that as a sign that the commission just doesn't work anymore and we need to change it and so as a final point in the last a few minutes that I have I want to offer just a quick reconnaissance and enforcement Jeff's going to talk about state ethics commissions in a much more systematic way in just a minute but I tried to look at how states enforce campaign finance laws as a form of comparison and my best estimate 20 states assign enforcement to what I call a top dog enforcer or a single person like the secretary of state or attorney general in a few states there actually is a top dog enforcer that's neither of those people there are enforcement mechanisms that are made up of an odd number of commissioners and nine states have commissioners that are comprised of an even number and one of the things this tells us that the FEC is sort of an outlier in terms of how states do these sorts of things and it's sort of instructive but how do we know how successful these different states are it's very hard to measure well the Center for Public Integrity tried and I'm going to use their outcome measures a bit at a point and then we can decide whether we want to accept their methodology but they asked experts in the 50 states to assess the enforcement mechanisms for campaign finance on three questions applied to candidates and applied to parties gives us six separate questions how good are the agency or the entity at independently initiating investigations imposing fines or auditing candidates and parties and so you get one of those questions asked for each set of political actors to give us six questions now how they actually translate that into a zero to a hundred from the anecdotal interviews that they did there's a bit of a hocus pocus to me in terms of understanding it but nonetheless it gives us what I call just a brief look and we can average those six questions together and then look at how the scores rank in the different types of institutions I'm going to call them reputational scores because they're not really outcome measures they're really highly experts in the state where the commissioners do and in the states where the commissioners or the entity is just the secretary state or the attorney general they get fairly low scores in the states that have odd number of commissioners they get higher scores and in the states with an even number of commissioners they're in the middle and so there's at least some suggestive evidence I wouldn't put too much causal stock in it but some suggestive evidence here that an odd number of commissioners is or even odd number commissioners that are coming to the FEC and that has actually been proposed at the federal level now my final point on this is just to maybe offer a defense of the federal election commission there's a lot of evidence that there's more dysfunction or more conflict but I think to some extent we might say that the FEC might reflect the culture of the time instead of being the sort of primary cause of the dysfunction in our campaign financing system if we see it that way in the sense that in the 1980s the time was we need to enforce the law the legacy of Watergate still exists the biggest problem we have is political action committees and contributions to candidates and everybody agrees that the walls are fairly high the entry of new money into the system and FEC functions as a reflection of that quite well then moving into the 1990s politics becomes more competitive there's more pressure on the system from political actors to inject more money into the system the FEC loses a lot and as a result they bend to the political culture of the time and say fine and then in the 19 or in the most recent 12 year period they are again perhaps a reflection of the polarized politics that we have today in the sense that this is simply the way they work because our politics is working this way at all levels and so maybe the FEC isn't to blame for the way they behave not to enable them in that sense but is at least in part a reflection of what's going on in the broader political scene so I'll end that there and I look forward to the conversation thank you sometimes better people can't hear what I say Rick said I'm from Missouri the only people who pronounce it that way are running for public office I want to make clear though I currently reside in Missouri I'm from Connecticut there's no mud on my boots I'm familiar with indoor plumbing I don't know actually given that Michael mentioned something tells me we're not getting through all those given that Michael mentioned the state integrity scores from the Center for Public Integrity and Public Radio International I believe was involved in there maybe they had General Mills involved too I'm not sure but these state integrity scores they were made quite a splash in the media and a lot of people have referred to them so this was a bonus slide I threw in at the end I'm going to start with it and I don't want to spend too much time on it but if you look at the state integrity scores and so I'm looking at the entire list right so it's a Google wish list of everything that's going to make the world better in terms of politics and rate the states on them and then the states that score high more toward 0.9 overall they have the lowest risk of corruption and the states that score low toward 0.5 they have the highest risk of corruption and that's based on the powers of introspection of various experts no attempt to say are these this wish list are the components on this wish list at all related to actual corruption have there been evaluation studies to support these presumed effects and so I just want to show you this picture if you plot corruption rates in the 2000s this is state and local officials convicted of official corruption per 10,000 state and local officials if anything it's a perverse relationship now it could be that those states that are particularly corrupt are adopting all these things like New Jersey and Connecticut but if you look at the changes you also see a non-negative relationship so this in my pet peeve among many is that when it comes to political reforms unlike say with economic reforms that I can't think and act at the same time rarely can accomplish one so when it comes to economic reforms whether say it's increasing tobacco taxes changing minimum wage it's quite natural to say what does the research tell us what are the effects of this let's go out to the evaluation literature and there's actually an evaluation literature because there's some demand for it when it comes to political reforms this may be overstating it a bit and this conference I think is stands as the exception that proves the rule perhaps when it comes to political reforms there's more of a tendency to judge the effects of things by what we wish would happen and so called experts use again the power of introspection to evaluate things rather than going to an evaluation literature often that's because there isn't an evaluation literature because there's no demand for it and so part of what I'm trying to do in my own research is to is to try to evaluate campaign finance laws and other related sorts of institutions on dimensions like public corruption trust and government and this paper grows out of that that interest now if you look at the about us section of the web pages for various state ethics commissions or go to the motivating portions of the legislation that establishes them you'll find lots of grandiose claims about the importance of these institutions for reducing corruption and increasing the integrity of government and public trust and government so Connecticut has this promoting integrity of government Oklahoma Nevada of all places that is preventing the use of public office for private gain increasing public confidence you see this across many states New Jersey perhaps by just being beaten down for so many years takes a much more subtle much more practical approach to these things they gave up on those claims there's six of us we meet on Monday so continuing on so on the one hand you have those grandiose claims about what state ethics commissions accomplish on the other hand in the social science literature there is some evidence growing literature on public corruption its causes and consequences there is some evidence that public corruption has real consequences we might care about in terms of reducing trust and voter turnout maybe even affecting economic growth but in the political science literature and there's not a lot of it in terms of a quantitative literature Rosenson's book is probably the first place to go I would say what do we know about ethics commissions from this literature they seem to be established in response to scandals but there's a lot of questions about whether they actually do anything but what I want to point to here is that there's this disconnect between the grand claims made on the part of political actors judges, policymakers pundits about the importance of ethics commissions and you can say the same thing about campaign finance regulations as well and how they're vital for the integrity of democracy and when it comes to the social science literature their opinion about ethics commissions is man not too many people are really studying them so some sort of disconnected the first hint that maybe we don't think those effects are going to exist but if you're going to evaluate state ethics commissions it's actually quite feasible there's a lot of variation across states and over time in these commissions both in when they were established how people are appointed so one thing I believe it's every case the majority of commissioners to state ethics commissions are appointed by political actors so nobody's being dropped from the sky at least in terms of the majority of the commissioners in their jurisdiction their investigative powers the particular resources they have many commissions have restrictions on party membership what kinds of outcomes should we look at for me the first place to look at what else has done this let's start at the first place would be corruption and trust in government today I'm only going to talk about corruption and so this is very much an initial exploration state ethics commissions serve to reduce political corruption maybe some of you already know the answer but let's not use the powers of introspection let's actually look at the data and doesn't matter whether those commissions are structured as bipartisan nonpartisan something else it's quite a feasible project I get data on the composition and characteristics of commissions from COBOL I had to join COBOL and national council state legislatures and public corruption convictions I'm going to use a data archive at Syracuse called TRAC in terms of state ethics commissions what they look like over time most of them have been established prior to 1980 and you see sort of a mix of those that have some sort of bipartisan or nonpartisan restrictions they're not the same thing but the only state that is effectively nonpartisan and requiring its ethics commissioners to be nonpartisan is Wisconsin and so bipartisan I mean an even number of commissioners equally split between parties no party majority that means there's some sort of restriction that prevents one party from having most of the commissioners and not all the same party you gotta have some token representation from the other party on there or effectively there's that requirement by who appoints and then we have some states that don't make any restriction so what we see over time is an increase in the number of states that have these commissions some variation in the types in other words a natural experiment to use the states as laboratories if we go for public corruption and since I have a room with people who know things about the law I'm going to point something out here so the public integrity section of the US Department of Justice collects information on official corruption makes that available in its annual reports that's what almost all of the research on public corruption uses in terms of looking at state level public corruption convictions and that data is based on a survey done by the public integrity section out to the federal districts you also have the executive office of the US district attorneys they have a name or report where they post data that should be the same thing track fed is a good government transparency group that uses FOIA requests to make available to the public data like this they should have the exact same data so there's four sources of data in there's two tables in their reports that should give us the same numbers all I did was plot these data from these different sources and so those lines are exactly the same as we can see this is a number of convictions over time the bold line would be the public integrity section survey data that most researchers use the dotted line is from the same annual reports and until about 1995 they couldn't get the numbers to add up across two different tables and then the lower lines would be the administrative data from the executive office of the US district attorneys and from track fed that's the data I'm going to use another advantage of that data is you can disaggregate it so this is why I was glad there were lawyers here so I've tried filing FOIA request to say can I see what the survey asks for and as best I can I showed them this picture and said can anybody explain this what's going on, why this is and no one will talk to me so if you use the track fed data I think this is the more reliable data I think what's going on is with the survey data what's being included would be things like drug charges things that are not related to official corruption and I've done some searching through media reports to try to verify that, that's my best guess using the track fed data what we see here is that of course not surprising most of the activity of the feds is aimed at federal corruption what's nice about the track fed data and unlike the data source previous people have used is I can focus in on just state and local officials corruption and so that's what I'm going to do so that's unlike every other published study on corruption in the states that uses this data okay we want to see this picture yes Montana really is that corrupt okay so what are we going to do we've got a dependent variable corruption among state and local officials and a key independent variable that varies across state and time and in the existence of commissions the type of commission that's established for now that's all I'm going to look at again this is a first analysis and I'm going to sort of do the analysis three ways one is just to show you some raw correlations over time and they pretty much tell the story the next would be a regression analysis so for those who have years to hear let them hear what I do is I take the annual data and because convictions have a lag and it's really important if you want to know the treatment effect of creating an institution or changing an institution you need to get the timing right of when the bad stuff was happening so what I do is I match the right-hand side variables in the regression to convictions that occurred over a five year period in the future and create five non-overlapping waves of the data and run a regression on that and it still leaves open the question of these commissions might be established in response to corruption reverse causality which would mask what's going on perhaps in this kind of analysis and so I do use annual data which is going to allow me to show you some time trends over time what was happening to corruption within states that had reforms before and after the reforms and that will address that concern about endogeneity or reverse causality if you will I have a picture here this is for state and local government officials in order to compare them across states I calculate convictions per 10,000 state and local government officials there's not many the numbers on the vertical axis range between zero and one and this is by the timing of commissions whether they were established prior to 1980 or in the periods after that matched again with conviction rates in the 2000s the next thing is more corruption in those states that have had ethics commissions longer and less with one exception North Dakota in the states that have not established state ethics commissions now that's in the levels we can look at the changes oops what's this one oh this is rather than putting state labels on that diagram I put a little bit of information about restrictions on the composition does that make all the difference where Democrats can have all the membership maybe they're totally corrupt themselves and so B would be for bipartisan NM would be no majority party and I don't think you see any pattern there with the party restrictions on commissions okay this is the looking at changes in corruption rates from the 90s to the 2000s and this is just to convince you that there's no strong pattern here either of anything it's perverse and then this is with the labels signifying which ones have no majority party restrictions and which ones have bipartisan bipartisanship and again it doesn't look like anything's going on there well let's control for other things and state demographics will be included as controls other kinds of institutional factors that will be controlled for will be the presence of legislative term limits appointed judges, Republican or Democratic control of government and the one thing to point out from this graph is that the mean and standard deviation of the dependent variable that helps you to judge whether the effects are big or small when you estimate them the mean is 0.13 convictions per 10,000 state and local government officials and the standard deviation is 0.17 so keep those in mind when you run the regressions again for those who have years to hear these are absolute values of T statistics in parentheses I'm not reporting everything in the regressions there's also demographic controls, year controls we cluster standard errors on state and in the first model column 1 the key independent variable is just do you have an ethics commission what is the effect of having one and in the second model I break it out by type of ethics commission and I have liberally used asterisks to show you all the statistically significant effects and that's really all you need to see no asterisks there and so these things are not individually or jointly significant in this kind of fixed effects regression analysis so within state analysis the next and last statistical analysis says well let me take that data let me do a similar regression but with annual data and now what I'm going to do in order to worry about the timing of convictions and ethics commissions and is it corruption that causes us to have an ethics commission is I'm going to estimate separate time dummies for before and after a state adopts an ethics commission and so there's 11 separate time dummies estimated the bold line is the coefficient estimate the dotted lines are the 95% confidence interval and notice that the confidence interval always bounds zero so none of these are statistically significant with one marginal exception right at the year of adoption got it how long you've been holding the one minute sign so right at the year of adoption there's a significant increase in convictions in a state remember convictions happen after the bad stuff the way I interpret that is there's some transitory scandal you get a commission and otherwise nothing was happening before nothing was happening after and it's not the case I think it's worth pointing out that we see states that have chronically high corruption adopt commissions A and then B it's not the case that that changes anything going on in the states at least in terms of convictions so of course failure to reject the null hypothesis is different from proving no effect but given these small estimates it's as likely that these state ethics commissions are increasing corruption a little bit is decreasing it I'm going to be a little provocative and say no support for hypotheses that ethics commissions work we should argue about what does it mean for them to work and that's about it thank you thank you Jeff and our first commentator is Richard Brafault thanks very much it's a pleasure to read these two papers it's very rare that you find papers that either change your mind about something that you thought you knew or that shake up your thinking about something and I find that both of these papers did or one did one and one did the other let me start with Michael's paper it does a very nice job with advisory opinions over the years by topic, by length by style we see they become more court-like over time with a lengthier recapitulation of the request the law, the facts prior opinions the feel of them is really quite different over time as your slide points out by the presence of unanimity or dissence in the deadlock we also get a nice sense of the changing nature of campaign finance refracted through these advisory opinions the rise of parties as initiators the change in topics to a more modern focus on things like the internet, bundling the use of phones and text messages to make donations, all of these things we can see the changes in campaign finance technology and campaign finance practice refracted through the advisory opinions as well as this particular slide about the growing complexity of the law we can see exactly when Bicra kicks in we can see what gave rise to Bicra and the rise of party-related advisory opinions we can see Bicra kicking in in a spike in the number of opinions right afterwards and we can see the growing going down and in terms of the growing number of deadlocks and division within the commission in a sense we knew all this before but it's actually nice to see it shown it's actually nice to see it proven and again the tracking of opinions is very useful. I have three suggestions for further research with this data that I think then can sharpen some of these findings and then I want to just give some more general comments about the FDC first I would be useful to actually focus on whether these deadlocks are partisan that's the one thing I was expecting that I didn't see we know who they are these commissioners who they're all appointed with a partisan background they're specifically sent up so that will be three Republicans and three Democrats we know who they are we know the president is one who appoints them but it's always on the recommendation of one side or the other we know what their affiliations are that should be knowable so it should be interesting to track how they're voting and whether in particular there's been change whether there's greater partisanship over time what we're getting is more deadlock over time and more dissents but that doesn't necessarily mean there's no partisanship I suspect that we'll find that there is but it would be I don't think it would be that hard to go back and find out who these people are so to think about the dissents it would be I actually don't find the dissents problematic actually on the dissents actually quite positive because if you're getting a 5-1 or a 4-2 vote that suggests to me that there's some party member crossing lines and I actually would be more troubled by the decline of dissents or the shift from dissents to deadlock but I think the presence of dissents shows that there are some hard cases where they're not dividing on party lines or at least one party member possibly too is crossing the vote with the other one so it would be interesting again to track the interplay of party with the dissent to see what we're seeing in terms of what's the majority coalition and to what extent it has to be cross-party if it's a 5-1 or 4-2 vote and then another thing which would be a little harder but I think is doable is the importance of the questions which are generating the deadlocks and the dissents I mean it's not entirely subject I mean to some extent it's subjective what's an important question but there are some objective ways of measuring it one would be the number of outsiders writing into your comments generally with the advisory opinion it's not just the requester you often see additional letters from other parties in the nature of amicus briefs if you could probably correlate the number of additional participants is one measure of talking about the importance of the case another would be the number of draft advisory opinions circulated as you watch these things or you watch the folder develop in a hard case you're going to see the opinions are drafted by the staff and then approved or not by the commission or you may often see multiple opinions you'll see advisory opinion 21-11-10 and you'll see draft A draft B draft C draft D as they look to see if they can find some kind of consensus or at least a majority that might be another way of thinking about this question of are they spinning on the hard cases again like this is that you're going to find that they are but since one of the great usefulnesses of this paper is to some sense it's always nice to prove what we know and I think you are proving what we know but I think you could prove it even more so if you're able to if you have the ability to do that the deeper question in the paper and more that relates more generally to the theme of today's conference is the structure of the agency and how does the structure of the agency relate to its effectiveness problem in campaign finance regulation and even I think other aspects of election regulation is the tension between effective decision effective decisive action in real time prevention of misconduct before it affects the election versus the concern about disruptive politicized enforcement law enforcement to actually change the election outcome by stopping certain spending stopping certain contributions or even by stigmatizing one of the parties as a violate obviously in the federal system we have chosen the avoidance of disruptive political enforcement and to use that to accept the fact that we're not going to have effective decision making in real time perhaps this reflects some distaste for enforcement per se and I compromise in campaign finance reform congress created a more aggressive campaign finance regulation in 1972 and 74 and a more aggressive enforcement process than existed previously when there was no independent agency at all and enforcement was actually given to the secretary of the senate and the clerk of the house this was a step forward but it was designed very much to be a limited step forward and the fear in particular of what a partisan majority might do there is a concern that you see the judgment here is that we're better off with indecision than with partisan control I think though that trying to map the effectiveness think through the effectiveness of the design of the FEC through the frism of the advisory opinions may not be the best way to get at it because of the nature of what the advisory opinions are they're not, when you give a comparison with the central public integrity's measures of the effectiveness of other agencies the things they were talking about there were like size of fines and conduct of audits and completion of audits those are somewhat they can be partisan in the decision whether to audit the republican national committee or the committee to re-elect the president obviously as a partisan judgment but they're closer to mechanical and they're closer to being post-election in many of these cases but the advisory opinions are pre-election typically somebody follows up an advisory opinion now so they can start spending next month and they involve not enforcement of the law but determination of what the law is they're interpreting the advisory opinion as kind of a hybrid of a legislative and judicial action they're kind of rule-making filling in the interstices of the law of which there are many that's a very gap filled statute especially in light of changes in the campaign finance practice so in fact the advisory opinion process comes close to a legislative process and it's different I think from some of the other things you're comparing it to it's not a bad thing to focus on which I could think of as more truly administrative and more truly implementative if that's the word which I think it isn't rather than the kind of new rule-making that advisory opinions really are and I think what you've got here and again what your data nicely show is the tensions within the law the shifting currents of constitutional law debate this is where in the world in which if the Supreme Court hasn't done a 180 since the mid-2000s at least on a 130 in terms of how Wisconsin writes a life in FEC versus Davis and Citizens United and Arizona Free Enterprise and also for good measure Doe versus Reed and in the lower court it's the world of speech now and also Green Party of Connecticut this is a world where the amount of doctrine is being generated at a rapid pace often with great changes from what came before often with the effect of curbing if not undoing the law that's on the books so one can see why confusion and variation reign just think of the most the current fights the vision within the federal courts of appeals the conflicting opinions of the first 8th, 9th, and 10th circuits on the question of the standard of review of the scope of mandated disclosure by independent groups the Minnesota or Swanson case which came down this week is one example of it so you've got a really complicated area and then the other area that you've nicely focused on where the highest level of problems emerges is in the groups which were not in the main body of the law as you point out candidates were the focus of the 1972 and 74 law and some extent parties were some of the focus of the 2002 amendments much of the conflict today is about groups that were not really thought about as being at the heart of campaign finance practice the 527s, the super PACs, the 501C where the law doesn't really address them clearly because they weren't really thought, people knew that there were independent committees out there independent committees were active in the 1920s pro and anti prohibition groups were eagerly supporting candidates so they've always been a part of the process but I think they were not so much the focus of the law as they become more central you're going to get more uncertainty and more division and then the other thing and I very much in agreement with the points you raised at the very end part of what's happening is here is the hyper partisanship in this area as in so many others we've got a situation now we've got conflicting doctrine new practices which are not easily covered by the law and more partisanship which here and I think here if you go back and look at the data on which commissioners are going in which way there are no more Trevor Potters on this commission there are no more Republicans there's no more DeJohn McCain who was was and not is there is that Chris Shays is no longer in congress Trevor Potters no longer on the commission so there may have been Democrats who went the other way you're getting what you're getting now is they're being asked to resolve questions on the situation where the issue, the resolution of the issues maps more and more on in which party maps more and more and more on the views of proper campaign finance regulation there was a time when the philosophy of campaign finance regulation and political party didn't learn congruent they overlap but they weren't congruent they're moving much more of a congruence now and so I think we have to think about that we're really very blind between administration and policymaking it may not be maybe too much to expect this to be a cross-partisan decisive agency when the rest of the law in this area is neither cross-partisan nor decisive so the part of me that becomes surprising me is really where your conclusion was which is the fault with everyone dumps on the FEC but the fault may be not necessarily with the structure of the FEC but with the partisan schisms and the doctrinal tensions in campaign finance law itself we turn to Jeff's paper on the state ethics commissions on do state ethics commissions reduce corruption political corruption the answer he gives us is no and the paper is a very useful summary of the principal features of state commissions the years of creation, the role of parties the composition and size and whether or not they have any impact on corruption I don't think it's anything surprising here because I actually don't think that ethics commissions are about corruption and at least in a sense of the way you're going to get corruption reported in the Department of Justice and other institutions deal with crimes bribery, illegal gratuities mail and wire fraud until recently theft of honest services although that's been cut back bribery is narrowly defined in federal law to require something a near explicit exchange of money for favors illegal gratuities were narrowed in the sundiamen case honest services was gutted and skilling even forward scope was limited by the lower federal courts state ethics commissions deal with something called ethics I'm not quite sure I know what ethics is I think we're all struggling with it but the main thing it is, I would call it sub-criminal it's about the appearance of impropriety rather than necessarily impropriety itself it's about conflicts of interest rather than actual bribe taking it's a prophylactic set of rules designed to prevent situations in which misconduct might happen rather than actually proscribing misconduct so if you look at what state ethics rules address, they address things like extracurricular area, entertainment and travel the outside employment activities of elected officials who are part-timers which is the vast majority of state legislators and local legislators actions which affect pre-existing personal family and financial interests conflict of interest which are not illegal the fact that somebody has an outside insurance business or a law business and uses his power as a legislator to steer people to become clients that's not bribery, that's not kickbacks it might be unethical use of public office for political purposes Secretary Sebelius was just censured by the office of special counsel in Washington because she gave a political speech while traveling on government time it wasn't a crime, it was unethical, revolving door rules anti-nepotism rules, disclosure rules, lobbying regulation they deal with a lot of stuff but mostly they don't deal with crimes if we're talking about corruption as criminal that's the province of criminal prosecutions but these guys are dealing with these gentlemen and ladies are dealing with our non-criminal sub-criminal or nil-criminal but not criminal things so I would be surprised if there was necessarily a connection between public corruption and ethics because I wouldn't go so far as to say they're apples and oranges but they're like mandarin oranges and grapefruits they're in the same domain but they're really quite different and they have different focuses and they vary considerably from state to state they're not set up to be criminal justice agencies, they focus on things like training, opinion giving they're not generally investigators they're reactive, some have some sanctions but the sanctions are more the nature of slap on the wrist, they very rarely have the power to do anything serious to efficiency which is not to say I think that they're accomplishing anything to go back to Jeff's last slide about what does it mean to say they work it gets back to Pam's question at the end of the fire panel why do we have them what do we want them to do and do they succeed we do have to focus on what it means the part that I found was very provoking is the question of what does it mean for an ethics commission to work, what does it mean what are they supposed to be accomplishing I don't know that they're supposed to be addressing corruption in the outside world they're supposed to be addressing government ethics but until we have a better handle on either what that is or more so how to measure it Jeff's asking an extremely important question which is how do we measure the success of these agencies, we can measure some inputs how long does it take to respond to a complaint how many briefings do they do, how many employees do they get their financial disclosure forms from in an entirely fashion how many ethics counseling do they do but these are kind of internal metrics in terms of the external metrics in what way are they making government better or the world better I don't know how to measure them it's a nice question we might not want to ask ourselves Jeff is showing us that 41 of the 50 states have these commissions why do we have them, I think he's right it's almost always the result of a response to some scandal might not even be scandal in that state it might have been a watergate but what we want them to do exactly and even more unclear is how we know if they're doing a good job I think it's a hard question and it does bring me back to where I want to end as Pam's point at the end of the first panel and maybe it's a little bit of a challenge for the theory of this day which is that we can break out administration and judge administration and see how well it works I think both of these papers are really asking questions bringing us to the fault line where administration meets policymaking where administration asks the questions about what we want our public goals to be and I think except that I'm criticizing them I think it's because they're it may relate to the the deeper challenge of the design of the day which is we have to break everything up into its parts otherwise we can't take on everything simultaneously all the time yet I think what these papers are showing us is the interconnection between administration and policy in the case of the advisory opinions and maybe even the harder interconnection of administration and what exactly we want to happen and why we think these things are useful I think I'm still a prisoner of liberal thought to think that these things are probably useful but I am sufficiently initially unsettled to confess I don't know why and I certainly can prove it thank you thank you I'm not giving up the podium that easily final speaker is Dan Lowenstein thank you and I join those who have come before who have thanked Rick for organizing this day it's my first opportunity to come down and visit our I guess closest neighboring law school in the University of California system I'm very pleased to be here and to see some old friends as if you read through the biographical materials in the handout today I retired from the field of election law a few years ago I have made it as full an escape as I am capable of although I couldn't resist the temptation as I said to come down here today so what you're hearing from me will be from a distinctly opaque perspective those of you who've known me for a while won't regard that as anything new but it's even more true than it was and many I think in most respects my response to these papers was actually pretty similar to Richard's so I will do my best I don't know how good that will be to avoid too much repetition of what Richard has said and try to just point out where my perspective on it may be just a little bit different but I doubt if I'll be able to avoid all repetition I thought I'd just make a few comments on some of the graphs that Michael from it is from presented just a few diverse comments and I'm sorry that they're not I can't cope with this stuff I can't look them up for you but this figure 2 the average opinion length per year I think that's the one where the actual line of dots tracks the trend line it's a steady climb up Michael and this one by the way some of the graphs start more recently because of the availability data this one goes back to 77 and Michael points as he does with all these to what these may reflect about what's going on in the commission I would say that if the average length of the opinion has been steadily increasing over this long period of time these opinions are drafted by the lawyers often young lawyers that the FEC hires this may actually be an indication of the deteriorating quality of legal education in America the my favorite of these graphs is a figure 3 and that's the one that takes the average number of earlier advisory opinions that are cited in each in each opinion and you'll remember it goes quite again quite steadily up and then I guess the 2002 and it goes down by no means all the way down but down by a considerable amount and then it starts going up again at pretty much the same rate and as Michael points out that's not a big coincidence it's that's when the fine gold bill bipartisan campaign format went into effect and a lot of novel questions where presumably there weren't as many precedents available decided it's just and it's my favorite just because the graphs so nicely fits the story it's really a good one now the remaining figures or most of them go to this question of the breakdown of votes and one general observation I think Michael addressed this more in his comments today than he did in the paper itself and that is his presentation in the paper is very much on the changes and that is certainly the changing percentages and the increasing percentages of deadlocked votes decreasing percentages of unanimous votes and so on and that is an important and legitimate way to look at it but one reason the changes look relative dramatic is that his well figure four for example goes from zero to fourteen percent and they vary if it was zero to a hundred percent these changes would not look nearly as dramatic and I think that an equally important and legitimate perspective is to look at the changes as a whole now Michael said today well yeah but the deadlocked votes and the unanimous votes may well be in the more significant cases so that therefore to just go by the percentages doesn't might understate and I agree with that and if I had to predict and probably predict that if he can figure out a way to quantify that that's the result he'll reach but he doesn't have data that show that so it's not proven and then on the normative question he said in his comments today he's talking about here this is on deadlocked votes he says this suggests dysfunction if you want to call it that but he doesn't have that in the paper he just describes it as dysfunction in the expository portion of the paper in the latter section on he gives reasons why it might not be dysfunctional but still in general there is an assumption that it is and I don't think and Richard covers this point that it's not good obviously if the commission can't provide advice because it's deadlocked but on the other hand if these are significant questions it's also not good necessarily if one party just dictates in this area of law so that it's a difficult problem and either approach I think is not entirely satisfactory I don't like it I'm sure he got born into a different world so one last comment on that just on the paper itself as a whole I think that the one part of it that could use some beeping up I think this is much more cosmetic than it is substantive but in that last section the discussion section it's really hard to know what to make of it because what Michael does is he goes through each issue and it's sort of well it's this it's X and then it's not X and I don't know what to make of that it's perfectly okay if he says there are different ways to look at this or there's competing evidence or various considerations and this is what's on one side and that's what's on the other and he can leave it there or he can say well there are these counter considerations but this is the conclusion I draw but too much of it has just thrown all this inconstance and stuff at us without really telling us how to understand it as I said I think that's pretty easily remedied in terms of the the study here and Richard maybe other aspects of this that might be included perhaps in a later paper I agree you're focusing on three votes and six to nothing votes as Richard said you don't even show how many of the three to three votes are breaking down on party lines I think intuitively we probably all expect a very very high percentage but it would be nice to know that but also I wouldn't I think five to one in four to two votes can be very very interesting and how many on the four to twos are they always one or are there sometimes two to center one to center from each party and I think there's more that you could do with that even than looking at those kinds of votes I don't well I don't know how easy it is to deal with the data and how available they are but if you can do it by member then you I think as far as I know one of the greatest advances in political science in the last quarter century was the DW nominate method of have developing ideological well cleavages within a voting body without having to just go rely on ADA or ACU or something but to actually tease it out from the data and I mean maybe I'm just mistaken here I certainly don't have any understanding of exactly how this is done but if my understanding is an understanding and I'm misunderstanding I think it could be used for these data too and that might be very interesting and one reason it would be interesting is this let's just take the extreme case assuming for the sake of argument that all votes are either three to three or six to zero and the three to three are always three Democrats versus three Republicans that still leaves open and the congressional literature is very much aware of this it still leaves open a question of what is underlying that so-called partisanship are they following party lines or is it just that Democrats have one view of these questions and Republicans have another view so that each one is following his own opinion but they break down this way and it may be that by tracking individual members more than just the aggregate vote you might be able to get some insights into that and well let me say a few words on Jeff's paper and then if I have time I'll try to address some of the points that Rick raised at the beginning today and again well I agree well what I said to Jeff during the break and it was definitely my response to reading the paper I would have been really surprised if he had found any significant correlations between the dependent variable of prosecution, corruption, convictions and the existence and nature of these commissions and I thought as I was reading the paper I would have been astonished Jeff I think would have been even more astonished and I think that's what Richard is saying too but really there's no reason to think that this consequence follows from this situation so on the other hand I think that there's quite a justification for Jeff to study in writing this paper and that is as he said and I think says perhaps even more persuasively in the paper itself this is the kind of language that some supporters of campaign finance regulation routinely use they talk about corruption and so on and so forth and there is either the statement or the implication that if we can have this control of campaign finance we will reduce corruption now of course there is the problem Jeff in his remarks I'm not sure if it was much the case in the paper itself but he talked about the connection or lack of connection between the existence and nature of these commissions and the existence of corruption what he's measuring though is not the existence of corruption he's measuring convictions and raise this point because I'm not sure about it on the other hand I've read a lot of Jeff's papers I know him and I have a lot of I think he's knowledge of his craft he's very very good but these are awfully low percentages as he pointed out one thing he didn't mention I'm not even sure if this is true but it seems impressionistically that it might be true that they may be somewhat clustered the justice department will sometimes go in and set up a sting or something like that and then you get a series of prosecutions in one state that may reflect more what the justice department decided to do for whatever reason it may be because of the aggressiveness of that U.S. attorney or there may be other reasons good or bad hopefully mostly good reasons but I'm not sure whether that might reflect the results here on the other hand even if that's a problem and I'm not saying that it is I wouldn't expect to find these kinds of consequences now Richard in going on from that talked about a whole range of things short of the kinds of crimes that the justice department prosecutes that all these regulations are intended to deal with following my archaism principle I'm just going to go back to an article that I published I think in 1989 in which I said that I think a much better way of thinking about campaign finance regulation and what I regard I'm one of the only academics who believes this but the Supreme Court still seems to think so its most central purpose is not so much the control of corruption but to limit or control conflict of interest and just a few observations along those lines one I don't know why academics don't study conflict of interest more conceptually it seems to me to be probably more interesting than almost any other subject that comes within the broad heading of election law partly because it taps into very deep questions about the human condition there's not much relevant to election law really that you can find in a work such as the Bible but it was Jesus who said that a servant can't serve two masters it's that is a very deep question about human nature and human society and the other question that comes into a big question that comes into play when you think about conflict of interest is well what kinds of conflict are acceptable or even good and what kinds are not and you could say well I was planning to vote for this bill but I went around in my district and I found that almost everybody that I talked to was took the other position and other indicators and so I decided to vote the other way well alright there's a kind of a pressure there from public opinion in the district that caused the legislator to go but we wouldn't ordinarily call that a conflict of interest because although the Berkian side of the Berkian debate says that shouldn't influence you it's certainly well understood that it does and many people would say to varying degrees that it should influence the legislator but I don't have time to go into it but the questions about what really is the kind of conflict of interest that we would like to avoid in politics get very deep and very interesting so and I don't and I think that by and large those are not consequentialist you can look at the amount of corruption although again there's a question whether those convictions are a perfectly good indicator but yeah you can look at that but here we're talking about something that's going on in somebody's mind and soul and it isn't so much a consequentialist thing if the judge or the legislator did the right thing for the wrong reason if it's a certain kind of wrong reason that is still troubling regardless of what the consequences are so joining with Richard I think these are interesting papers before I became an academic I spent four years as chairman of the Fairville Practice Commission here in California so this is certainly a subject of interest to me and look forward to the discussion it's going to be the end to us all I want to give the panelists if they want a chance to respond before we go to questions I'll just respond real briefly I do have the data set up to look at the partisanship of the blocks and this would suspect quite partisan so I could definitely expand upon that and I appreciate the comments more generally I think that there's a lot more in the data that we can bring to bear on this sort of stuff I know I'm an academic because I agree with the commenters nevertheless I have something to say so the idea of ethics are completely different but they're a prophylactic for something and if they're not strangling corruption in the crib then what is it they're doing maybe the spirit of both the commenters suggests a better outcome to look at would be say public opinion confidence in state government and so this tees up nicely a next study doing exactly that I've done that with campaign finance laws but a journey of a thousand miles starts well with a cup of coffee but if you're me but you know this was a place to start an obvious place to start and when I get home I'm going to go right next to the next step but I otherwise agree completely with the concerns and comments we will open it up for questions hi I'm Bob Stern I was general counsel of the fair political practice distribution for nine years four years from then I was also the administrator for CODL the council on governmental ethics laws and I was the administrator when you asked for the information I've been giving it to you without making you join thanks so much for the papers Jeff I hope you will do and maybe you did so I haven't had a chance to read the papers but I hope you take a look at the budgets of these commissions because the budgets may just make a huge difference when Dan and I were working on put up reform act we said the agency should have a guaranteed budget of a million dollars a year without the legislature appropriating that money and we cost a living increases and it has the biggest budget of any state in the country and many of these states and local agencies have budgets that have been really drastically reduced and so they really have no effectiveness secondly legislators hate these commissions and they try to set them up in ways that make them fail and on top of that many of the commissions don't have jurisdictions over the legislature so they really can't impact on the legislature finally in Ohio and Pennsylvania I know that they have had many many cases where the commissions have gone to the federal authorities or the state authorities and said here are problems in our states you should be investigating these and they have investigated these things jointly so some commissions in a sense have increased the number of convictions because they have looked into it and have referred the cases over to the authority so those are some of the comments I hope you could look at those I'm Estelle Rogers from Project Vote and we don't even work on campaign finance but I just wanted to ask a question about the FEC I'm much more used to operating in the atmosphere of the EAC in Washington DC and even back when there were commissioners on the EAC it was always wistfully talked about as why couldn't it be more like the FEC functional and then over time it seems as if the the trend line went the other way the FEC at least publicly is perceived to be a lot more like the EAC and I'm just wondering if anybody has any concrete ideas about how to fix it these you know there are obviously some virtues in having party splits and you know I agree with you and it doesn't surprise me that your majority counts have been very much along partisan lines because I think hyper partisanship has definitely infected the issue of campaign finance and anybody who reads the listserv we commonly call Rick Hass's list would know that on those subjects it's much more apt to be hyperbolic and pretty mean all the time in terms of just real quickly what we could do to fix it this is where I always run into problems because I have this sort of balance between wanting to make a recommendation about a policy change what I'll propose will never happen and so in the case of of the FEC one could suggest as a number of people in congress have put forward bills to do changing the structure of the commission over to five members how you appoint them you could adopt some strategies from how states do that using recommendations from you know judges and so forth and all that is interesting and you might even say would accomplish something but it's hard for the senate to even approve new commissioners to replace old ones and some of them have been on there far longer than they should be and that just makes me a little less enthusiastic to propose anything I'm a bit pessimistic when it comes to that sort of structural change and in fact Obama tried to appoint one commissioner in the last four years and had to pull that one back so I think that we face that first obstacle before we could talk about in a world where John McCain doesn't vote for more disclosure and all you need is John McCain to pass the Disclose Act changing the structure of an agency which monitors elected officials is hard to imagine the question of structure is also relationship between the formal structure and the de facto structure could be quite different and of course as you may know in the original model of the FEC the one that was before the Supreme Court in the Buckley case members of congress directly appointed members of the Federal Election Commission as a way of protecting their interest and the Supreme Court struck that down as a violation of separation of powers they all had to come from the president but by the time Jimmy Carter was there the president couldn't make any appointments unless they were pre-approved by the relevant parties in congress so technically we don't have partisan appointments but in fact that's what we have because the actual system that has grown up around the formal system is this bipartisan system with the president having just about no discretion to pick anybody he's told to appoint by the relevant parties and even then he can't get them through sometimes if they're seen as too far too enforcement minded by the senate Your story might actually be a general story about agencies and how they've changed over time because it's often the case that there's a specific problem for which they could deal with consensus but need for change at the birth of one of these agencies and so it's not surprising that the agency that initially reflects that consensus per period of time like with the creation of the FEC and then over time the agency gets away from the core things about which there was consensus and starts dealing with more and more challenging and controversial problems so take the voting rights act as an illustration of that but the Department of Justice lots of consensus per period of time and now the voting rights section is an incredibly politicized body that reflects the larger conflicts in society as issues have changed and here in particular I think that the McCain-Findl law actually this is not external polarization or disagreement that we see emerge over time but I think the McCain-Findl law actually generated a lot of polarization so the campaign finance because unlike the reforms of the 1970s even though that was nominally bipartisan the Republican Party was overwhelmingly resistant to that act when it was passed especially the prohibition on the advertisements on corporate advertisements and of course the McCain-Findl turned around and there was a lawsuit immediately to challenge it and so there was really not the kind of consensus behind the enactment version campaign finance regulation that there was behind the laws in the 1970s and so it wouldn't be surprising at all that the agency is going to then reflect and underline the census it's not just the simplest story I was telling initially about change over time but in here in particular the intervention McCain-Findl law I think really polarized these issues even beyond the larger polarization of American politics True, and just a brief add-on to that it's also reflective on the actual members themselves I haven't told much of a story about the actual people who are the commissioners but who is getting appointed to the commission after McCain-Findl are also the same are also the people who are considered to be more of that from the polarized pieces of each party and that's happening on purpose for all those reasons we've discussed and so there's a story to be told here if I can just add a point I think those are various new comments and I agree with them there's another thing that's going on here this particularly might affect Michael's table figure on how often the requesting party is getting the answer that he wants and that is that I think that probably many of the people who request opinions have gotten increasingly sophisticated this is anecdotal but I've been in a small number of two or three situations in which people I was working with sought an opinion from the commission and a lot of thought went into that and and there are a lot of things first of all a lot of thought goes into whether you're going to do it in the first place but then what question are you going to ask and how are you going to phrase it and one of the considerations and this could affect some of your findings would be if you are confident that the three members of one party will go along with what you're asking then it's kind of a no risk thing because you might pick up at least one of the other members of the other party and even if you don't you got three to three and how likely is it that you'll get prosecuted if you do something where there was a three to three vote so that and the two could also it could be a self-reinforcing kind of thing because to the extent that the for various reasons the reactions of the commissioners become more predictable then it becomes easier for requesters to become more sophisticated so I think that might be something to add into in the back Jeff interested in why states might create ethics commissions and I wonder if there are specific scandals that if there's variation something happens at the state and then the legislature decides that they can win some political points by establishing an ethics commission was designed to prevent the kind of thing that just happened and I wonder if I could do some animal purchasing to look at what scandals that are fun and the second point is it relates to Bob's maybe there is a connection between what ethics commissions do and convictions for corruption and maybe you can find a direct connection like Bob was saying but what is it that ethics commissions do I mean in the legal area if you get slapped by the legal ethics commission in the state that's bad news you're going to lose access to it you don't want to do that if you're a politician and you get nailed by the state ethics commission board so what the question of so what may be interesting for your work if somebody certainly it's going to be broader for your opponent you're going to say oh look this guy was in that together by the state ethics commission you got nailed well maybe it hurts for those who have been brought before a state ethics commission board maybe there's a story about recidivism if you've been nailed once by a state ethics commission board are you ever going to go for that board again because in a way it's not full of not then the ethics commission has done something they've exposed your corruption either you don't get elected again or you never go before the board again so I don't know if somebody is going to say the one thing the apples in the oranges don't work good suggestions my comment is actually related to what Dan just brought up and that is it's for Michael what kind of selection effect do you expect to see over time in terms of the cases that are brought before the FEC and does the possibility that selection effects are driving changes in approval rights make it difficult to infer the agency as a whole has become is in an era of cracking down on violations or is in an era of liberalizing campaign finance that might instead those differences that show over time be due to people's strategic responses to how as requesters strategic responses to how the agency had been behaving previously yeah I think that's definitely possible it's probably hard to there's a universe of opinions that have never been requested and political actors who get legal advice outside the advisory opinion process to do some sort of innovative behavior but I think when you look at these qualitatively or at least when you read them and you see what's sort of interesting that there's probably a selection mechanism happening in terms of the way you phrase the question and the types of questions you ask but there are also I think from my reading of them real concern about I don't know if I can do this or not and I certainly don't want to do it without an official legal response from the FEC and I'm thinking particularly in this case of what the FEC has come to call maybe a legal term I'm not sure but affinity programs and commercial provider to do something to raise money taking advantage of technology like text messaging and so forth but there's nothing in the law that's going to give them at least any guidance on that specific question or at least they want it to be pretty clear in terms of being able to do it so I think there's probably the way things are phrased and the way the timing may has definitely got more sophisticated I think that's for sure because the early questions were kind of basic and have gotten a lot more sophisticated but as technology has developed I think there's a real sense that I need some sort of opinion here on what I can do and so therefore it's coming sort of exogenously as things have changed it's pretty hard to tease out the difference and to know but I think that's there's that that's happening Last question, Justin So it's along the same lines actually in addition to just a qualitative review from what you've seen in addition to advisory opinions that are seeking permission or advisory opinions that are seeking a test of enforcement as Dan just suggested do you see advisory opinions that are seeking denial that is crafty cross-party advisory opinions that are applying to mimic the perceived tactics of the opponent with a slight adjustment so as to provoke a no you can't do that response I think so I think it's less frequent but Citizens United which you know they're doing this all the time they for example did ask in 2004 for an opinion which sort of was the germ of this whole this whole thing about advertising their documentaries and it came I believe in large response to or at least they were motivated in part by Michael Moore's distribution of Fahrenheit 9-11 and the advertisements for that documentary and they said well if he can do it we can do it and maybe we will hear a legal opinion here about whether or not I can advertise this documentary and we see in that particular case the Citizens United advisory opinion on that issue said no, those are electioneering communications and maybe it was the germ of an idea for them to sort of push this all the way but I truly believe at the beginning that they were attempting to sort of at least maybe respond to what they perceived to be an advantage that the left was getting by promoting this documentary so it may happen in other instances as well Okay Rick Poole said really nice things about UCI Law School, what he didn't mention is that the air conditioning system is atrocious I'll see if we can get it a little cooler The plan now is that you should go out and get a box lunch and we're going to reconvene here at 115 for the keynote, please open up all those noisy packages and cans before we start I want to thank our panelists very much for very good I've been going around on my book tour and talking about my proposed solution to some of the problems of our elections and I talk about non-partisan election administration and I say that what we want is somebody who has the integrity of the election process really the election process rather than the allegiance of a political party as the primary goal and that the goal should be to ensure that all eligible voters but only eligible voters can cast a vote which will be accurately counted and I was presenting, I think it was in Chicago this week and somebody said there's nobody like that that could actually do that how students have that kind of system you couldn't name a single person and I said actually I could name two and one of them is sitting right here the other is Doug Chaper Ned Foley I think epitomizes what it means to be a professional non-partisan thinker about the field of election administration I'm so glad he's here to give us the keynote today Ned directs the election law program at Ohio State University's Morris College of Law where he's also the first to hold a new professorship named after the recent Chief Justice of Ohio Thomas Moyer who would have welcomed this symposium and its attention to the topic of how to prove the impartial administration of justice particularly with regard to litigation over the voting process before his untimely death Chief Justice Moyer was poised to play a leading role in the American Law Institute's election law project for which Ned serves as the reporter Ned intends to carry forward that effort with the development of a set of rules and principles that can serve as a model for non-partisan election administration Ned's recent writings have focused on the adjudication of vote counting disputes. Last year he published a three-part series in the election law journal on the Frank and Coleman dispute over Minnesota's U.S. Senate seat which he called the Lake Wobble gun recount I think he called it that because it was above average. I would call it that because it was boring and way too long I'm not going to be on Perry Home Companion He published an analysis of the McCain versus Obama simulation which he conducted prior to the 2008 election in which a specially selected panel of distinguished retired judges adjudicated a hypothetical dispute over provisional ballots that raised the same kinds of constitutional questions that arose in Bush versus Gore The purpose of the simulation was to see if the mechanism for selecting the panel one Republican and one Democrat who together decided on the third judge to serve with them would affect the nature of the judicial deliberations of this kind of case It is interesting that this three-judge panel was unanimous in its opinion just like the special three-judge panel that later decided the actual Coleman Franklin dispute. Ned's scholarship on optimal design of impartial tribunals for vote counting disputes is directly germane to today's symposium 2010 they wrote another paper The Founders Bush versus Gore which addressed New York's disputed gubernatorial election of 1792. The argument of that paper also relevant to today's symposium was that our nation's founders accidentally bequeathed to us a system ill-suited to the intense partisan conflict that quickly emerged over vote counting disputes It's an argument that Ned is carrying forward in a book that he is writing on a history of vote counting disputes in the United States Ned is going to speak for about 30 minutes He'll be followed by Heather Gurkin via law school who will be a commentator I'll introduce her after Ned has spoken. Please join me in giving a very warm welcome to Ned Foley Thank you so very much, Rick As his kind introduction indicates I'm someone who believes strongly that the United States needs more non-partisan institutions for the governance of the electoral process He mentioned my work on the design of institutions to adjudicate vote counting disputes And in a companion paper for today's presentation entitled The Separation of Electoral Powers I invoke the familiar three-part distinction between legislative executive and judicial functions to sketch out three distinct institutions to address the problem of partisanship that affects election administration In particular, most relevant for today's talk I advocate a non-partisan director of elections instead of partisan secretaries of state to enforce all the voting rules like early voting that we see for the implementation of the voting process As you all know and as Rick mentioned before my home state of Ohio continues to be exhibit A of what happens when those rules are in the hands of partisans Still, what I want to say today is that non-partisan institutions are not enough to meet individual office holders in those institutions who have sufficient virtue that they do not make their decisions based on favoritism for a particular party or candidate Let me illustrate with a hypothetical Suppose we become lucky enough to have a federal director of elections appointed by the most non-partisan method we can devise I have in mind something like Rick's own proposal that a presidential appointment require confirmation by the Senate It would still be necessary that the individual who holds this office actually act in a non-partisan manner To invoke an analogy just as it would be wrong for the chairman of the Federal Reserve to make decisions about monetary policy based on a desire to help a particular presidential candidate win in November so too it would be wrong for a federal director of elections to make decisions about the availability of voting based on favoritism for a particular candidate We hope that the structural design of the Federal Reserve and specifically the method by which the Fed chairman is appointed reduces the risk that the Fed is actually motivated by partisanship but we cannot guarantee that we have eliminated this risk completely Likewise requiring pre-force of the Senate to confirm a federal director of elections would considerably reduce the risk that the federal director would actually be motivated by partisan bias But even with this optimal appointment method we haven't eliminated the risk entirely So let me give you a real world reminder that sometimes officials who are specifically chosen to be non-partisan when making important electoral decisions actually end up acting as if they were affected by partisanship Recall the role of the five Supreme Court justices worked on the electoral commission established to help resolve the disputed Hayes Tilden election All five of these justices ended up embracing the legal position that benefited the candidate of the party with which they were associated The three Republican justices supporting Hayes and the two Democrats siding with Tilden Most significantly in this regard was the alignment of Justice Joseph Bradley with the other Republicans on the commission Bradley, as many of you know was added to the commission as the fifth justice at the last minute when David Davis, who was viewed as an independent declined to serve Thus Bradley was chosen specifically to be impartial and yet he acted in a way that appeared at least to Democrats at the time as motivated by party loyalty Now there are many lessons to draw from Bradley's appointment to and performance on the commission and I've written about some of them previously but the one that is most relevant here is this It is not enough to appoint someone to be a non-partisan tiebreaker whose role is to be the single impartial vote if all other members split along party lines It is necessary too that this designated neutral actually possess the psychological disposition to be neutral and then act according to this virtuous disposition rather than from a motive conscious or not to favor one side or the other Put more succinctly in order to have genuine electoral non-partisanship in practice it is necessary to have virtuous office holders in addition to well designed institutions There is more to this necessity of virtue We must consider to the role of the legislature in the governance of the electoral process The legislature enacts the voting laws These voting laws are partisan in their motive then the inherent bias of these laws is not negated just because they are administered by a non-partisan director of elections instead of a partisan secretary of state We all know about the recent enactment of restrictive voting laws by republican dominated state legislatures Many observers suspect that the desire to secure a strategic partisan advantage rather than a sincere policy preference is the unaligned motive for these laws The suspicion of course was validated at least to some extent in Pennsylvania when the republican leader of the state house of representatives Mike Terzai gloated to fellow partisans that the passage of that state's new voter ID law would secure Romney's victory in the state This example vividly shows that to remove inappropriate partisanship from the governance of the voting process it is hardly enough to put in place a non-partisan official to administer the voting laws that the legislature enacts Yet the legislature is going to remain a thoroughly partisan institution It's not going to be reformed to be some sort of non-partisan body nor is the authority to enact laws for the governance of the voting process likely to be completely removed from the purview of partisan legislature To be sure, we may be able to remove redistricting from the legislature's authority as California did as we talked about this morning If we're especially fortunate we might be able to assign the authority to promulgate many election administration rules including voter ID rules to some form of independent non-partisan body, but as my colleague Dampakaji's paper for later this afternoon on Wisconsin points out the independent commission may end up at the mercy of the partisan legislature anyway Now also we may be able to use constitutional law to protect against the most egregious instances of partisan favoritism in the enactment of voting laws by a legislature Although in Pennsylvania in the voter idea litigation the trial court refused to invalidate that law on the basis of a partisan motive In any event bottom line we are unlikely to eliminate entirely the authority of partisan legislatures to enact laws for the governance of the electoral process Therefore if the electoral process is to be protected from legislation motivated by partisan favoritism this protection will need to come in part from the willingness of legislative leaders at least somewhat to be virtuous and to set aside such partisan motives Now, lest you think it inconceivable that a legislative leader is capable of putting aside partisanship when a major election is at stake I want to give you an actual example In fact I want to share with you what may well be the most significant act of non-partisan virtue on the part of an elected politician in US history involving perhaps the most explosive session ever in the US House of Representatives Yet I bet many of you have never heard of this individual or his particular act of non-partisan virtue So raise your hand if you recognize this individual If I give you his name Samuel Randall does that help at all? I'll get just as I thought So let me tell you his story and then we can assess its significance for us today This story also concerns the resolution of the disputed Hades-Tilden election but not at the role of the electoral commission Rather this story is about what Samuel Randall did on March 1st, 1877 just three days before the scheduled inauguration of the new president At that point the dispute was still very much unresolved and indeed headed towards a constitutional precipice Randall's non-partisan conduct on March 1st averted that potential constitutional disaster Samuel Randall Democrat from Pennsylvania the same state by the way that Mike he was the speaker of the US House the legislative leader the United States House in 1877 that's of course the same position that John Boehner holds today Randall was known to be a loyal partisan and that's why he was chosen by his fellow Democrats to be speaker and he was also close to Tilden the Democratic candidate Yet on March 1st acting as speaker and he acting contrary to intense partisan pressure from his fellow Democrats in the House he made a decisive procedural ruling based on his sense of duty to the nation as a whole he truly put country before party as the old saying goes and was thus motivated by the kind of non-partisan virtue that I'm intending to illustrate In depicting Randall's conduct I wish to portray what we might call a profile in electoral courage drawing upon the title of John Kennedy's famous book Now to understand the significance of what Randall did on March 1st we need to set the stage and this is a bit complicated so please bear with me The same statute that created the electoral commission set up a procedure for handling the electoral votes from each of the states Congress in a special joint session would consider each state in alphabetical order The two houses however would separate to consider any objection to the accounting of the state's electoral votes that was voiced in the joint session If there was only one certificate of electoral votes from the state then it would take both houses of Congress acting separately to reject that state's electoral votes However if there was more than one certificate of electoral votes from the state then those multiple certificates would be sent to the commission and whatever the commission decided with respect to that state would prevail unless rejected by both houses of Congress again acting separately So the overlook of decisive moment in the whole dispute arose as Congress came close to the end of the alphabet when it was time to take up Vermont The commission had already issued its eight to seven rulings with respect to four states most recently South Carolina The senate controlled by Republicans had sustained all four of those rulings and thus under the terms of the statute those four states were all awarded to Hayes The special joint session of Congress was chaired by the president and the senate as required by both the statute and the 12th amendment to the U.S. Constitution The president of the senate at the time was actually the president I'm going to ignore that So the president of the senate was actually the president pro tem Thomas Ferri a Republican from Michigan because the vice president of the United States who was normally the president of the senate had died and not been replaced The joint session got to Vermont on the last day in February having started at the beginning of the alphabet with Alabama on the first day of the month that it took a whole month to get to this point and March 4th was looming on the horizon Ferri announced that he had a single certificate of electoral votes from Vermont and asked if there were any objections to it There were indeed objections from the Democrats Much more important however was a surprise development Representative Abram Hewitt of New York who is chair of the National Democratic Party and the principal manager of Tilden's presidential campaign announced that he was in possession of a second certificate of electoral votes from Vermont Hewitt wanted to give that second certificate to Ferri so Vermont would go to the commission under the terms of the statute Now Hewitt's purpose in wanting to send Vermont to the commission wasn't based on a belief that the commission would rule in favor of the second certificate He knew that the commission by at least another 8-7 split vote would rule in favor of the first certificate, the one that Ferri already had which awarded the states electoral votes to Hewitt Hewitt knew also that the Republican-controlled Senate surely would sustain the commission's ruling and thus Vermont would still go for Hewitt's But Hewitt's purpose was simply to delay the count with the hope that sending Vermont to the commission might cause the clock to run out that March 4th would arrive without the complete count of all the states having been finished In that situation the Democratic-controlled House of Representatives plausibly could assert under the Constitution that it was entitled unilaterally to elect Tilden as President since neither candidate had received a majority of electoral votes by the prescribed deadline of March 4th If the House of Representatives had taken that unilateral step and if Tilden had attempted to assume the authority of Commander-in-Chief on that basis it would have been a genuine constitutional crisis. The Republicans were prepared to resist by military force if necessary any claim by Tilden to the powers of Commander-in-Chief asserted on the basis of a unilateral declaration from the Democrats in the House The Republicans would have claimed that Ferry as President of the Senate had the constitutional authority under the 12th Amendment to complete the count in favor of Hayes by March 4th notwithstanding a formal declaration to the contrary from the House of Representatives Now it doesn't matter which side had the better of this constitutional argument as a matter of constitutional interpretation The point is that on February 28th just four days before the deadline there were recalcitrant Democrats in the House who were prepared even at that late date to insist on their constitutional prerogative to elect Tilden in the event of an incomplete count It was constitutional brinksmanship that Ferry's claim of a second certificate from Vermont seemed to all the world a signal that the leadership of the party and Tilden himself supported this confrontational stance So Ferry refused to accept you at second certificate He said that under the controlling congressional statute any purported certificate needed to have arrived in his possession by February 1st at the beginning of the month at the beginning of the count the certificate had not and thus it was untimely and could not be considered So Ferry ruled from the chair in the joint session over the protests of Democrats that Vermont was a single certificate state and thus the two hammers were supposed to separate in the joint session and go separately to consider solely whether to accept or reject this one certificate Now here's where the drama gets really interesting and becomes most intense Later that same day the Senate quickly voted to accept the single certificate from Vermont The House however recessed until the next day Thursday March 1st Under the terms of the statute the debate over the single certificate from Vermont was limited to just two hours This time limit had been put in the statute precisely to avoid attempts to delay the completion of the count When the House convened on March 1st, hardline Democrats argued that this two hour debate on the one certificate should not begin But instead the House should insist on sending Vermont back to Senator Ferry and the joint session with the demand that the count cannot proceed unless and until Vermont be recognized as a two certificate state and go to the commission on that basis In effect the hardline Democrats were arguing that the entire counting process should be frozen in its tracks unless and until Ferry acquiesced in treating Vermont as a multiple certificate state So Randall, his speaker presided over these deliberations in the House He announced from the chair that while he agreed with the view that Ferry should have treated Vermont as a two certificate state he believed that under the statute he was duty bound to accept Ferry's ruling as final on this point and thus start the clock on the two hour debate enabling the electoral count to continue The hardline Democrats demanded that Randall let the House vote as a body in their position, in other words to vote as a body on whether to send Vermont back to Senator Ferry without undertaking any consideration of Vermont as a single certificate state There is a chance that the hardline Democrats would have won this vote which would have provoked the constitutional crisis that they sought since it would have deadlocked the proceedings with no apparent way out of the impasse of the large fourth Randall had reason to believe that a large majority of Democrats in the House, his own caucus perhaps as many as three quarters of them would support the hardline position What he didn't know was whether there would be enough Democratic defectors to vote with Republicans to let the electoral count continue Southern Democrats had not yet definitively signaled their willingness to accept the inauguration of Hayes in exchange for promises from Republicans to remove federal troops from the south That is why the situation was so perilous at this climactic point to repeat, if Randall had let the vote on the hardliner proposal occur, there was a genuine risk that the electoral count would not finish by March 4th In the words of one House member at the time who was later a political scientist at Oberlin College, this calamity that the country might not have been averted were not for the fact that Randall had strength of will equal to the emergency Thus, at this crucial juncture in the story Randall took it upon himself to keep matters from reaching the edge of the constitutional cliff Contrary to the vociferous demands of the allies in his own party Randall refused to permit even a vote on the hardliner proposal The hardliners were apoplectically furious The scene in the House when Randall held his ground was unlike any witness before since The Oberlin professor, among others described it as the stormiest session the House had ever known The New York Times reported that ladies left the galleries because they believed that armed conflict might erupt The Times of London reported that some members grabbed for their revolvers and that there is imminent danger of violence Amid all the shouting from hardline Democrats, one of them a man named George Beebe from New York mounted his desktop bounding over four other deaths and apparent attack on the speaker Randall had to call upon the sergeant of arms carrying his mace to restrain his fellow Democrats and restore order But in the end Randall prevailed The two-hour debate began and the electoral camp moved on to its conclusion So I hope you can see why consider Randall's behavior at this moment worthy of being called a profile in electoral courage Why did he act as he did? Well, on the heat of the moment when that guy George Beebe demanded an explanation why Randall wouldn't let them vote on such a momentous matters who would be president and whether the House had the prerogative to elect Randall replied that his conscience required him to perform his duty under the statute as he sought Does Randall held firm from a sense of duty to the law and the nation as a whole? He did not succumb to the withering intense pressure from his fellow Democrats So what use can we make in 2012 of Randall's virtue back then? I think there are three lessons we can draw. The first is actually a point about institutional reform As heroic as Randall was in pulling the nation back from the institutional brink, the United States should not have to depend on such heroism in this kind of situation Instead, the issue of whether the federal government has received one or more timely certificates of electoral votes from a state along with the ultimate question of whether or not a presidential candidate has won a majority of electoral votes should be placed in the hands of a well-designed nonpartisan tribunal Second, we can only hope that the current speaker of the House would exercise the same civic virtue if he happened to find himself in a similar situation Now the good news is extremely unlikely to happen But just suppose, hypothetically next January, when Congress convenes to count the electoral votes they're developed to debate about whether Wisconsin is a one or two certificate state Perhaps there's a last minute decision from the Wisconsin Supreme Court as improper under state law and this ruling, which is the basis for the purported second certificate would give the state Wisconsin to Romney instead of Obama Under the electoral count act of 1887 passed in the wake of the Hays Tilden dispute and which still remains in force it still matters whether a state sends one or more certificates and the president of the senate still has the authority to make this ruling in the joint session Therefore imagine Vice President Biden ruling that Wisconsin is a one certificate state which would assure Obama's reelection While hardline Republicans in the House the Tea Party types insist that Wisconsin is a two certificate state which under the convoluted terms of the electoral count act would lead to Romney's victory Suppose Biden refuses to accept the second certificate as timely while the hardline Republicans in the House, again those Tea Party types insist that Biden must or else the count remains incomplete and thus the House will assert its constitutional prerogative under the 12th amendment to elect Romney directly in the absence of an electoral majority for either candidate In other words, suppose that House Republicans next January make this exact same constitutional argument that House Democrats did in 1877 prepare to go all the way to the constitutional to prevail Would Speaker Boehner resist the hardliners in his party in the same way that Speaker Randall did? I leave that question for you to ponder recognizing in all likelihood it will remain safely in the realm of speculation The third and final point I want to make is that the story of Randall's heroism should be much better known than it is It should feature prominently in high school or college history or political science classes or civics classes along with other profiles in electoral college like John Jay's refusal as New York's governor in 1800 to go along with Alexander Hamilton's partisan plan to amend New York's laws in an effort to prevent Jefferson from becoming president Moreover, these and other profiles in electoral courage should be emphasized not only in high school but in the various educational sessions that we academics hold for professional politicians provided to speak to the National Association of Secretaries of State for example or the National Conference of State Legislatures we should consider whether it would be appropriate to remind our audiences of the historical examples in which public officials have actually put aside partisanship when making a major decision about the electoral process I'm illustrating some other heroes in our history I won't go into all of those I'm only giving you Randall's one illustration but there are others so we should teach these profiles in electoral courage so that they become admired and hopefully emulated now I'm not so naive to think that proselytizing about electoral virtue in this way will automatically cause our politicians to suddenly become virtuous electoral heroes like these other examples but what we teach about US history both in high school and college and to professional audiences does have the capacity to affect our political culture at least over time and to some extent so my point today is about culture picking up on something that Rick Pildes was saying this morning because inevitably we must rely to some degree on our politicians to be virtuous if the governance of the electoral process is to be free from partisan favoritism we must hope that we can begin to cultivate at least modest improvements in the propensity of politicians to act with electoral virtue moreover if we do it right teaching a set of profiles in electoral heroism has the capacity to yield vivid life long memories of the standard to which we should hold our politicians when they make major decisions about the electoral process these profiles in electoral heroism are suitable for role playing exercises with participants asking themselves what they would have done if they had been in the same situation with the electoral randall or John Jay or Charles Evans Hughes another example I can't tell you about in detail today but having experienced vicariously what it's like to stand in the shoes of a politician faced with this kind of decision and having the ability to refer to examples in the past where politicians have acted virtuously in the moment of truth the recipients of this form of education can demand that future politicians also do the right thing they may face their own moments of truth in any event what and how we teach is something that we who are academics can control we certainly have more control over our own teaching than we do over the structure of the institutions that govern the electoral process it's not as if all our scholarly proposals for institutional reform have been adopted just because we've advocated them thus without abandoning these efforts at institutional reform as I said at the outset I'm offering additional ones of my own and my separate companion paper but without abandoning those efforts at institutional reform we should also devote some serious and sustained scholarly attention to the cultivation of electoral virtue we can do this directly by considering the content of what we teach and how we teach it both to our regular students in the classroom as well as to our wider audiences in recent decades scholars have actually neglected the cultivation of civic virtue as a pedagogical goal it is considered in old fashion even quaint ideal but it is one to which we should return if we do over time we might discover that we can actually help make a difference in the quality of our civic culture and thus in turn in the quality with which democratic government operates thank you thank you so much Ned a riveting historical lesson and somewhat terrifying slim possibility of the future I'm very pleased that we have Heather Gurkin with us today to provide commentary on Ned's keynote Professor Gurkin is the J. Scali Wright Professor of Law at Yale Law School who work falls into two areas constitutional law and election law Professor Gurkin's research and constitutional theory is centered on the values associated with minority dominated institutions she's written about diversity, descent, federalism and relationships between rights and structure her most recent piece federalism all the way down appeared as the forward in the Harvard Law Review Professor Gurkin's work in election law is primarily centered on election policy and reform she's written on campaign finance, lobbying, districting and election administration her proposal that Congress establish a democracy index, a national ranking of state election performance has been incorporated into bills by Senators Hillary Clinton and Barack Obama and Representative Steve Israel it has been the subject of several conferences subject of her new book, the democracy index why our election system is failing and how to fix it Professor Gurkin has published a variety of journals including the Harvard Law Review, the Stanford Law Review the Yale Law Journal, the Columbia Law Review Political Theory, Political Science Quarterly Roll Call Legal Affairs, Legal Times the New Republic American Prospect and elsewhere, she served as a commentator on legal controversies for numerous media outlets she's testified in election law questions before Congress and the Massachusetts legislature she's won teaching awards at Harvard Law School and Yale Law School as well as the Green Bag Award for exemplary legal writing in 2007-2008 she served as a senior advisor to the National Election Protection Team for Obama for America and before entering the academy Professor Gurkin served as a clerk for Judge Stephen Reinhardt of the Ninth Circuit and Justice Davis Souter please join me in welcoming Heather Gurkin actually after Ned's introduction I was a little bit worried I was going to be introduced as the unethical one so I just want to start as everyone did by thanking Rick you've done more for this field than almost anyone I can think of and we all came here for you so in response to Ned's paper, I think I might begin with a well-known political theorist and say, quoting Jerry Maguire Ned, we live in a cynical cynical world and I'm worried that I might be too much the cynic to respond properly to this paper, although I'm not yet old enough Bruce and Dan to be labeled a commudant of the field, I feel like I might well be on the way but it seems unduly cynical to respond cynically to Ned because as Rick said if anyone embodies the qualities that Ned was describing it is Ned Foley, he's one of the most ethical and decent people in the field so I thought I'd say two things about the paper the first is how I think Ned's paper fits into the broader themes of the conference and the second is about how to achieve what Ned is getting at so on the first, how Ned's paper fits into the conference theme the notion that it would be good to have more heroes is hard to refute although I am again tempted to quote a poet in this case, Tina Turner we don't need another hero we don't need to know the way home all we want is life beyond thunder dome and the cynic in me would be happy in an elections world without heroes I just want to get beyond the electoral thunder dome a highly polarized world where there is too much cynical manipulation of voting rights for partisan interests I just want a halfway decent set of election administrators doing a halfway decent job at resisting partisan impulses but again the flip response would be unfair to Ned's deeper point I think that Ned's story isn't so much a story about heroic individuals as professional norms and the effect that they have on us Ned reminds us of two important things that often get lost in discussions like these the first is that we ought to have standards to measure our heroes and our election administrators against we ought to have norms that guide behavior that make it harder to give in to craven political considerations because norms are what make Ned's heroes possible norms are what makes Ned's heroes recognizable and the second and related point that Ned is making and the reason why there were so many photographs up there is that election administrators are people we sometimes forget that as well I know that sounds like a simple point but the reasons why norms work in this world is because people are complicated they're both hero and villain and if you rolled your eyes at the notion of heroes you should also roll your eyes at the reductive simplistic idea that so often gets bandied about in conferences like this that election administrators are nothing but craven political actors so until we recognize that election administrators are human beings complex and conflicted we cannot figure out how to bring out the hero or discourage the villain so taking a piece of what Richard Rufal described as breaking down the animal that we're describing here I thought I'd just talk a little bit about the norms question because norms are almost never mentioned in discussions like these when we think about institutions when this tribe thinks of institutions we tend to think about them in two ways the first is how power is formally allocated and the second is the public choice question which is what happens to the way power is allocated when we put rational actors into those formal institutions norms are typically neglected by both law and political science but in those of the two main parts of the tribe that we have because they're soft law not hard law they involve culture sociology and psychology and are very hard to measure by scrubbing a lot of data and running empirical analysis in my view though we cannot have the discussion we're having without thinking about this piece of the animal so I'm urging this to do at a more granular institutional level what Rick Pildes urges to do at the national reform level which is to pay attention to culture so this brings me to the second question if we think that norms matter the questions of course how would we get to the point of disagree with Ned and Ned tells us that institutions are not enough and the spirit of the session I thought I tried to provide a counterpoint to that claim by claiming that institutions are indeed enough to resist his argument that we need election administrative heroes more electoral virtue or the institutions will fail my claim is that actually institutions are enough at least if they're the institutions of the right sort if they're the kinds of institutions capable of generating and disseminating professional norms and while this claim is in some sense fashioned as a response to Ned's it's not really because Ned is deeply an institutionalist so I actually think it's actually more of a counterpoint to the rest of you cynics out there because I suspect that everyone in the room except Ned you know who you are Sam Zacroff I suspect that almost everyone in the room agrees with Ned that institutions are not enough but they are also decidedly in the skeptical camp on the heros front so I imagine that the poor challenge of the day is whether in addition to not is not whether as Ned would frame it in addition to non-partisan institutions whether we need non-partisan heros but I suspect most people are wondering whether non-partisan institutions let alone non-partisan heros are remotely plausible in this day and age so can institutions really be enough and by enough I don't mean an agency populated with Ned's heros but one that is good enough I mean one that does a pretty good job pretty often of dealing with pretty hard stuff is it possible to imagine a robust enough bureaucratic culture developing or redeemed forever to the electoral thunder dorm that we often see and here I'll just begin with a very modest point one of the things that we often forget and which is brought out so nicely by some of the papers today is that robust enough bureaucratic cultures exist in lots of other places most other places in fact other countries muddle through the election administrators shield it from politics and many of them do a good enough job to avoid the electoral meltdown that our host Rick Hasen thinks looms large in her future and if it does Rick it will sell you some books to be sure most other countries have a bureaucratic culture that is different from ours there is a lesson to American exceptionalism but we see robust bureaucratic cultures developing even within US institutions whipsawed by politics the Congressional Research Service for one the Office of Legal Counsel they are not perfect to be sure but they are good enough professional norms work well enough and short at the very least they put some activities beyond the pale and that's because they work for a deep psychological reason that applies to everyone everyone is subject to peer pressure people care about whether others think especially what their professional peers think and again for those of you cynics out there rolling your eyes at the notion that election administrators might care about let alone act based upon what other people think I'll just say that it seems to me equally simplistic to assume that election administrators are craven political animals without any thought save their own partisan interests people are complicated that's Ned's point they don't want to think of themselves as the Machiavelli's of American politics they can be self-interested they can even delude themselves to thinking that they aren't self-interested but they still pay attention to what others think and for that reason the crude cynical picture we often deploy in these discussions strikes me as no more realistic than the naive view the political interests can be shed away from these discussions and here the social science backs me up though the work is done by people who typically don't come to our conferences sociologists psychologists and the like people are demonstrably shaped by professional norms they want to imagine themselves as good people and as a result they will adhere to what their peers tell them makes for a good person teenagers do the same thing although they end up with tongue rings and tickets suggesting a Bieber concert professional norms in short don't just give us a model of how to behave they also make people queasy when they're not behaving that way they provide the gut check about whether you're letting partisanship taint your decision the check against deluding yourself that partisanship isn't tainting decision the public shaming that comes after partisanship taints the decision so in my view the problem in election is not that election administration is a more craven or less ethical profession the problem is that it hasn't yet become a true profession in the first place the things that make professional norms possible the things that make bureaucratic cultures robust enough just don't exist in the world of elections so think about election administration which is something I spent a couple of years studying it is astonishing to me that even in this day and age there is almost nothing known as a best practice in the field when you raise the question with an election administrator what they will inevitably say is everything is local and everything varies when you late raise it with this national association of secretaries of state as I did then if any institution could disseminate best practices it would be mass they said they prefer to talk about shared practices because of course if you call something a best practice then you know you want to do it and it's not surprising that there are no professional norms in this field because the vast majority of people who run elections every day are there either by happenstance or because they were involved with one party or another there's no accreditation system there's not widely recognized educational path there's not even a decent training system for many of them election administration doesn't even have a trade magazine and the few membership groups that exist are too locally oriented to develop a field wide consensus there is no bible for the field so all the usual ways by which we diffuse best practices and norms educational system policy making network professional associations they're just absence and election administration so which brings me back to Ned's heroes if we want to create more heroes how do we create the right culture to find them and here I will just say that I find it hard to imagine that civic education is the solution as Ned suggests and here I am tempted to respond as did Beatrice in Much Ado About Nothing when she cried hey ho for a husband and the prince offered to get her one she responded that she would rather have one of his father's getting and if I could share all the innuendo and flirtiness from that phrase I will say when I hear Ned cry hey ho for a husband I am tempted to say that we are more likely to get heroes that are Ned's father's getting that is I think it is more likely that if we just had Ned's family raise some more Ned's for us that we will get because looking for that if all of us teach this not all of our classes I just am skeptical that civic education is the solution but in the absence of a time machine and not wishing to burden Ned's father and mother I think the real hope for creating more heroes is to focus on institutions because as I said before institutions can be enough so if I had money and time to invest I would focus on just the basic building blocks of professionalization and I would start with election administration not redistricting because the stakes are lower and the targets are softer I start creating opportunities for networking and training among election officials I start doing really simple things just like writing a best practices manual a bible something that people can use as a sword and a shield when political pressures begin to build and we've learned from the papers today actually one that can present this afternoon that in fact the large election administration and offices are the ones that are most vulnerable as political targets to being swayed one way or another politically but they are also easy to target on the norms front their administrators are better educated their better networked and their better paid they are ripe for the picking on the professional networking front now none of this can happen of course overnight none of this can happen even in a few years institutions take time to grow but the work is worth doing because as I said when I began I believe that institutions are enough even without Ned's heroes and in my view they are far more likely to create the conditions in which Ned's heroes might emerge thank you thank you Heather I don't know if you want to take a moment to respond to Heather if not I'll open up to questions just real quick thank you was this on can you all hear me maybe virtue is the better word to focus on than heroism and I think part of what you said which I agree is the gap between us I don't think is is that deep and wide I think it's nice to to stress the contrast I think as you said we need both institutions and we need the norms and I guess my point would be to get the actors within the institution to act according to the norms they have to act with at least some degree of requisite virtue might be a modest amount it might not be heroism but it has to be a predisposition to act according to the norms and so in that sense I think we're striving for the same things and I also think that institutions can be norm inducing and positive conduct inducing so that if you have the right institutional design you can kind of nudge people towards following the norms in the way that you want them to so I think if we scale down the expectations just to have virtue by which we mean following the norms then I think we're actually striving for the same thing and the set of means that we're seeking to get there are pretty similar maybe with a little bit of different emphasis here and there on what to stress more but I guess I still would say that not in every in the day to day world of election administration thank goodness most issues aren't that important I mean you know yes unfortunately some ballots will end up being invalidated that shouldn't be invalidated but it won't decide the election and you know better officials more professional acting according to norms will reduce those error rates and that will be intrinsically a good thing even though the sky wouldn't have fall anyway whether the error rates were higher or not but I think we part of the reason why there are so many there's so much litigation in swing states is because people think that you know pushing on the rules might affect the outcome elections when it really matters the most so I think it is also important to test the system and the design of the system that cannot deal with the difficult cases as well as the easy cases and for that I think you have to act what's the degree of requisite virtue that the system needs not for the day to day run of the mill situation but what's the degree of norm following conduct that we need from our actors when the pressure is higher and so that why I think we need to look at both kinds of situations run of the mill and more out of the ordinary and finally and I don't have any empirical data at the moment to back up this point but my guess is that most good hearted individuals the complicated people that you talk about who don't want to be Machiavelli who go about their lives trying to be good people but face lots of different pressures people like maybe John Houston or Jennifer Brunner or Kurt Browning in Florida I think they would prefer to live their lives not thinking that they are heroes but have heroes worthy of emulation and so I think a practice of democracy in a society and a life lived in democracy is a poorer life without heroes and I think we're more likely to have virtue and more likely to have a better society not if we're all heroes every day that's not it but that if there is a role for heroism within the overall frame of our system I'm going to use my moderators to ask a question and the question is in our to get Rick's term hyper democratic hyper federalized hyper polarized I guess we've got the three hyper system is there still such a thing as virtue and I'm thinking specifically of Judge Posner's book he wrote two books about Florida one of the two books the Florida 2000 crisis and one of those two books he defended the Supreme Court not as a matter of doctrine but as a matter of averting a constitutional crisis and he presents the US Supreme Court and Bush versus Gore as the epitome of virtue and Democrats many of them obviously don't see it that way and I'm wondering if we're so polarized now and so far apart that we can't even talk about virtue I tried to stick to history to avoid contention over current situations but I would say speaking about complicated individuals if we follow closely what John Hughes did as Secretary of State in Ohio has been doing right now some of his actions are more nonpartisan more virtuous than others so for example he declined to take an appeal from a decision that ruled against him on whether or not to count a certain kind of provisional ballots we don't need to get into the technical details and that I thought was him resisting partisan pressure acting according more to the norm of let's have people's ballots count when the only reason why they wouldn't count is because of poll worker error that's not so good so I raised the point I lost in court I don't want to take an appeal the Attorney General of Ohio Mike DeWine said well I'm going to take an appeal anyway on the behalf of the State of Ohio because I want a different outcome so there's a situation where I think you can measure the conduct of two individuals both at the same party both partisans one I think I would accord more virtue to one decision than the other and I hope my point about that is not a partisan point but a norm reflective point local officials to say that all of a sudden they're not following norms that they're not professional I think maybe it's more Heather's comments the cynical comments I want to maybe more address that because I think that what we need to understand is that a lot of these local election officials the people that run the day to day boring stuff are trying to operate within what they think is right now what is right is an open debate especially with these high profile things that you're talking about but I don't think we know about their public service ethic I think we know that there are a number of professional organizations and training opportunities for them and I think that we but we just don't know very much about how partisanship guides their decisions so I actually I just want to just I think you misunderstood what I said so I just want to I'm in agreement with you on the question of are there professionals in election administration the answer is yes are there people who are doing a really hard job with almost no resources and doing the best possible job that they can yes but I don't think that election administration is a profession so there's a difference between those two things you can be highly professional in a context where you don't actually have something that would be recognizable as a profession so that's when I said the phrasing was actually kind of careful when I was writing about what I think about is kind of quasi-heroic election administrators because I think they have a really they have a job that's harder than anyone else including election reformers because they're constantly being whip-side by both sides they have no money they have actually relatively little training compared to if you sort of think about people who run other parts of organizations many of them if you start looking at the surveys so a lot of them don't have college degrees many of them don't have high school degrees many of them are working the jobs part-time so there's nothing like the training that you see in other countries so that's one of the hallmarks of profession and I think that they fall well short of that not that they aren't professionals in the way they conduct themselves but that is not a profession another sign of a profession is education so again, some of them don't even have high school degrees some of them don't have college degrees but they even said that there is no training program which again is another hallmark of professional accountants lawyers, doctors those are professions they are trained to do the job and people are trying to sort of start that up but that's not a profession so it's not a knock on an election administrator it's a knock on what I think of as the entire system even the sort of network group you have so the National Societies Secretary of State that looks like a professional organization but a lot of the local ones some of them have things like when they meet with one another they have things like resume draft building and things like that and really at the heart of of a profession so I'm not in disagreement with you that there are professionals that there are really good people doing a hard job and that's one of the things I like about NEDS but I don't think that election administration as a whole can properly be called a profession of the sort that we recognize in other context I'm going to take Bruce's question there are a lot of other questions to stay on time I'm sure at the break we can continue the discussion informally two quick points of information and then I have the question about your historical unpacking your notions so the two points of information one is I think it's in rational design there's a recognition of exactly your point about norms on NEDNOS I've pointed into discussions in Madison about that Madison believed it and the reason it's in contemporary that everybody's acting strategically trying to get around it are just too hot like traffic like problems and so I think it is built into institutional design, indeed very notion why people vote, we as political scientists tried to find a rational reason to vote and in the end threw in a big term called the civic duty term so that's understood the second point of information is I don't think that partisanship considerations are thoroughly craving and we're using that word synonymously when in fact underneath it are legitimate disagreements about citizenship, legitimate trade-offs between integrity and public reach etc and yes it is being manipulated and yes there is a craving mix in that which makes it very hard but it gets back to a distinction made in the first panel between administration and policy and to call the field election administration in a sense as a misnomer because part of it is really election policy and these issues of representation and some of them really are about administration so those are my points of clarity but my question is about your moment of heroism and unpacking it because there's really two elements of that one is the courage to stand up against maybe even members of his own party and I don't know was he the only person in the party or with the party split were the hardliners completely dominant or was there a split in the party so that his courage wasn't so unimaginable that he was the one person the leader of his party possibly losing his speakership over this issue or was there enough of a split so that his courage was within the bounds of our imagination of what human beings can do and then the second is what was the principle of fair play you don't really talk about that what's the principle of fair play was it that delay I mean when can you legitimately use rules for tactical advantage and when can you not and what is the principle for that and that gets to if you're teaching civics you can teach the courage part perhaps but you also have to teach the principles underneath so it's not enough to just identify that he did something that was horrible you have to really get at what's the principle that he was defending at that point those are good questions I mean I do think the one historical episode that I focused on could be an even much richer and deeper story than I gave it time in today's elaboration and I think that confirms Heather's point that it's very easy to be reductive and to some extent we have to abstract from the messiness of the real world in any story that we tell so I think you probably I mean it was certainly true that Randall in many of his decisions talked to other historians and read he acted very politically and very partisan in many series of moves that he made both before this day and after this day on the army budget at the time and a whole host of other things and he was a machine pal from outside Philadelphia so I don't know that he was pure that I bet his motives were complicated and that he was only partially heroic if that's the right word for what he did on that march first and that he was a political actor checking I mean he was checking the votes and acting in a very political way at the same time as I think he was in some sense genuinely acting out of a sense of conscience contrary to party it's a rich deep story that you know I was joking with Heather before you know you need a novelist or a playwright to be able to really capture Dan Lowenstein earlier talked about the inner life and soul of these people and I think that's really what this story is about you know on your point about fair play and when it's okay to break rules and not I mean I think that's a rich question about what are the norms and how we hold people accountable you know I think what Randall would have said in this context there was a kind of institutional point built into a sense of duty and therefore conscience I mean if you think about it in some ways he acted undemocratically and refusing to let the legislature vote but his point was that there had been a compromise by the senate and the house back in January to set up that statute in the first place and that statute was law and that statute gave Ferry a different institutional responsibility and so Ferry had a job to play under the statute that was different from his job he was kind of pissed off to use the technical term of what Ferry did but he understood that Ferry was entitled to his role he was entitled to his and so in some sense this is kind of a nice return in some sense his sense of virtue was following the rules that were laid out for institutional purposes and not just doing whatever he wanted politically or whatever his caucus wanted politically I think we'll have to stop it there we will reconvene at 2.30 for our final session on election administration by then the temperature the room will be 115 degrees please join me in thanking Ned and Heather which is I'm Marty Weinberg I'm one of the local political scientists here Rick asked me to give him a break and moderate this since he's been moderating the rest I'm happy to do that and I teach elections at political parties here find us very fascinating stuff I'm happy to do it so Rick said the title for this panel is is non-partisan election administration possible and I just saw Rick and I go of course Rick I lived in Australia for a while it's possible I saw it in action and then oh he has another question here desirable yes Rick I lived in Australia for a while great elections ran really smoothly there and I say if the Australians can do something we can do it too but I think what Rick really means is he is non-partisan election administration possible in the United States hmm not a desirable yes possible I'm not so sure so we have three papers here today that actually address different elements of that so the first is by Christopher Elmendorf and Douglas Spencer just Elmendorf gonna talk and actually I don't have the knowledge either so I had everybody else oh it's right there correct and I have my 15 minute countdown timer as soon as you start I'm counting it down alright alright ok so I'd like to thank Rick first of all and all of you for putting up with the sweltering heat and persisting till the bitter end also just for reasons of convenience I'm gonna give this talk but it's a thoroughly co-authored project and Doug my co-author is in many respects the engine under the hood of this paper and if you don't know I encourage you to get to know him especially if you're on a law school hiring committee yeah that's great alright so our paper is sort of a strange bird on this panel because it really belongs on a panel entitled is lawful partisan election administration possible we look specifically in this paper at the behavior of a partisan elected official the California Attorney General who is supposed to behave in an impartial manner under state law so let me give you a little bit of context here if I can California regulates direct democracy and a variety of ways that all cohere with a common idea the common idea is that voters are at some risk of being tricked into adopting measures that they would not support if they were better informed tricked perhaps especially by the proponents of the ballot measure so examples of this include the single subject rule public rather than private characterization of ballot measures on the decisional documents that is the circulating petition the proponents must circulate to gather signatures to qualify a measure for the ballot and then subsequently the ballot itself the Attorney General an elected official a partisan elected official produces these characterizations and then finally as all of you know or most of you know California publishes a ballot pamphlet sometimes described as the voter phone book that includes detailed descriptions of ballot measures that are prepared by the nonpartisan legislative analyst as well as a short summary introduction called the ballot the ballot title and summary which is prepared by the Attorney General now in the view of many critics what California has done with this scheme is that it is basically substituted Attorney General trickery for proponent trickery that is the Attorney General behaves as a strategic partisan actor when titling ballot measures and when preparing summaries for the voter guide and the question that we started talking about was well is this even a testable proposition can one say whether the Attorney General is behaving as a strategic partisan actor or not in carrying out these responsibilities and the central difficulty seems to be coming up with a measure of bias because what is a biased ballot label or ballot title in the view of some observers may be a perfectly sensible one in the view of some other observers so without an uncontroversial objective measure of ballot label bias is it still possible in any way to say whether the Attorney General is behaving as a strategic partisan and we have two solutions to this problem that we pursue in this paper one is to quantify the readability of the ballot label the 75 word description that voters see on the ballot itself of the measure they are asked to vote on. Linguists have come up with measures quantitative measures of the readability of the text and we then develop and test hypotheses about where we would expect to see deviations from the readability norm that is a typical level of readability in a ballot label if the Attorney General were behaving as a strategic partisan actor. Our second strategy is to put ordinary people or in our case college genes behind a veil of ignorance regarding the author of a ballot label and then to ask them not knowing anything about who wrote the ballot label or whether the ballot measure was actually adopted or not whether they think the ballot label is biased or not and we think there is a lot of noise we expect there to be a lot of noise in these ordinary observer evaluations of bias but in the aggregate of enough observations we hope to come up with something that covaries meaningfully with actual bias if there is any. Okay, so what do we find? Well, let me start by talking a few preliminaries. First I'm going to give you a really bird's eye overview about how we go about skinning this beast and this paper in 15 minutes I can't say much about what we're doing. We really have two papers kind of ruled into one here but I'll try to say a few words about each. So the readability part of the paper begins with a premise. This is not something we test, this is something that we assume which is that as ballot labels become more difficult to read there is disproportionate roll off and or incorrect voting that is voting not in accordance with one's own policy preferences between voters who are very good readers and voters who are very poor readers and if there is this disproportionate roll off or disproportionate error rates in voting then there is an opportunity on the part of whoever is writing the ballot label to manipulate readability so as to selectively enable or disable voting by voters who are not very good readers. So if this premise is correct then the attorney general's incentive to manipulate readability should be increasing first in the polarization of public opinion by reading level with respect to the measure and we don't actually in this paper measure polarization of public opinion by reading level but we create a dummy variable for measures that either enable or fort redistribution and we assume that redistributive members are likely to polarize opinion by class and the class is correlated with reading level skills. Second, the expected closeness of the voters if the measure is expected to be a squeaker then the attorney general has a greater incentive to invest in manipulating the label then if the election is likely to be a blowout and we proxy expected closeness of the vote with actual closeness of the vote it's a little problematic it's post treatment but you know it's the best we could do and then third we assume that on measures that are more divisive along party or ideological lines the attorney general either because of his or her personal policy preferences or because of pressure that he or she faces from party elites will be more likely to invest in manipulating the ballot label and we create a very rough proxy for partisan or ideological division on ballot measures by looking at the average share of the yes vote in the six most liberal assembly districts measured by presidential vote share and the average yes vote in the six most conservative assembly districts measured by presidential vote share and so this measure of the divisiveness of the measure of a proposition can also be understood as we have a rough estimate of its spatial location with high numbers positive numbers corresponding to conservative member propositions and negative numbers corresponding to liberal propositions okay so the bottom line here then is that on measures that enable or work redistribution we expect to see republican attorney general's writing complicated labels hard to read labels democratic attorney general's writing easy to read labels and we expect this to be especially pronounced in cases where the election is likely to be close or in cases where the proposition is really divisive however we don't find anything of the sort I'm not going to spend a lot of time again given time constraints explaining this slide but the bottom line is there's no difference however you subset the data between democratic and republican attorney general's in terms of the readability of the labels they write anything the democratic labels are a little bit harder to read than the republican labels so the hypothesis that attorney general's behave as strategic partisan actors by manipulating readability at least in California is not supported by the data this is all post-1974 ballot measures so what about this ordinary observer veiled observer strategy for trying to get traction on the question of whether a label is biased and whether the attorney general is behaving as a strategic actor so we have conducted a survey of college students both in California and in Utah you say well why Utah we figured we wanted to get some conservatives in the pool they're hard to find at Berkeley or Davis so we go to Utah so we've got an ideologically diverse pool of ballot label evaluators but not one that's representative of the California electorate we then gave the subjects a pamphlet containing what we called a description of the ballot measure prepared by a neutral disinterested expert and point of fact what we actually were giving them was the description prepared by the legislative analyst the long description that is produced for the ballot pamphlet for the voter guide but the students didn't know this was the legislative analyst characterization of the measure they just knew that it was a description or they were just told that it was a description of a neutral disinterested expert we also gave the students through an online survey something that we called a proposed ballot title and summary which we told the students may or may not have been the actual title and summary that appeared on the ballot and may or may not have been prepared by a neutral or disinterested person so also in our instructions we explained something about how you know ballot labels works they knew this was something that could appear on the ballot but they didn't know whether this was written by the attorney general they don't know whether it's written by a proponent they don't know whether it's written by an opponent they don't know whether it's written by us all they know is that they're supposed to read the label and evaluate it for four kinds of bias relative to the long description prepared by the neutral expert the four kinds of bias that we asked them to evaluate correspond roughly to types of bias recognized by the courts first does the label use prejudicial language second does it make an argument for or against adoption of the measure third does it selectively exclude or include information in a way that may cause some people who don't know much about the measure to vote differently than they would have voted had they read the long description prepared by the neutral expert and finally there was a catch-all other category subjects who reported proceeding bias were then asked about the direction of the bias that they perceived did it favor a yes vote or did it favor a no vote we also asked a bunch of questions about the subject's individual characteristics specifically did they support or oppose the measure that they've been asked to evaluate based on the description in the pamphlet we asked them about their reading ability measured by SAT scores we asked them about party affiliation and then various measures of trust in government and social trust and we asked what do we expect to find here well again as I said before we expect perceptions of bias to co-vary with both the observer's characteristics and the actual political circumstances that may have influenced the Attorney General in terms of the AG's incentives we expect the closeness of the election and the ideological divisiveness of the measure to be positively associated with bias we also expect Republicans to write labels that are biased towards a yes vote on conservative measures biased towards a no vote on liberal measures and vice versa for Democrats in terms of the observer characteristics we expect voters or students in this case who support a measure to see less bias than people who oppose it we expect good readers to see more bias at least of the selective inclusion or exclusion of information form than for readers simply because they will have assimilated more information about the measure from having read the pamphlet and finally if our veil is imperfect partisan minorities are people who are distrustful of government may be more likely to see bias what do we find what I'm reporting here are results that are based not on the full set of surveys we intend to complete by the end of this fall but by half the surveys we've done so far we have about 900 observations in total from 300 observers covering half of the measures that have been on the ballot in California between 1974 and the present by the time this paper appears in press or is ready to be submitted for publication at the end of December we'll have double that number of observations and all of the post-74 measures in our data set so first we find competitiveness is completely unrelated to perceived bias second ideological or partisan divisiveness is positively correlated with bias but the effect is small and not significant and in our directional model where we're again trying to explain perceptions of bias in favor of a yes or a no vote we find that there is the expected coefficient on the interaction term between attorney general party and the ideological or spatial location of the measure but the effect again is not significant so there's really no evidence that we can point to in this paper either based on our subjective observer measures of bias or on the objective readability scores that the attorney general is behaving in a strategic fashion and in terms of the observer characteristics we do find a significant effect in the supporters are less likely to perceive bias than opponents of the measure and this effect interestingly is largely due to perceptions of bias in terms of selective inclusion or exclusion of information or other bias there's not any kind of winner effect or agenda center effect on perceptions of bias with respect to whether the label is argumentative or whether it's prejudicial and interestingly enough the California courts when reviewing ballot labels for compliance with state law tend to focus on whether the label is argumentative whether it's prejudicial so perhaps through some in-co-op process the judges themselves sense that these forms of bias are more susceptible to objective evaluation or at least evaluation that's not clouded by the observer's own policy preferences with respect to the measure than other forms of bias um reading ability turns out to be significantly related to perceived bias but not in the way we predicted good readers are significantly more likely to see labels as argumentative but less likely than others to see labels as bias by virtue of selectively including or excluding information and finally none of the trust and minority party variables are significantly related to perceived bias as you can say is evidence that our veil worked so where do we go from here we as I said are gathering more data we're going to try testing some alternative hypotheses about attorney general incentives maybe it's not on the divisive ideological measures that the AG really behaves as a strategic actor but instead on measures that benefit or are opposed by a special interest and there's a few other things that I won't talk about but you can raise questions about if you wish later on thanks so much perfect thanks Chris I can testify there's a lot information in this paper so take a look at it I know you didn't get a chance to talk about all the stuff that's in it but by any means my colleague Bernie Groppin says never have more than one idea in a paper and you've got way more than one which is great reading okay so let's move on to the second paper it's the policy views of partisan elected officials and David Kimball, Martha Croft, and other authors three maybe others are joining us for a video no just us no I mean watching maybe okay so Martha Croft is going to talk first that's what David said so we do have to acknowledge our co-authors what we have David Moynihan from Wisconsin who's a public administration scholar and Cara Silva as well and of course Brady Bayback another public administration scholar that worked with do you think it's going to be best to clip it on okay I'm only talking for half of it so we want to acknowledge our co-authors and I also want to thank you for working out the technical issues with turning it on before I got up here so my question from the last panel was really along the lines of do we really know a lot about what the election administrators look like in terms of some of their policy views because this is something that I have thought for a long time that we haven't spent a lot of time doing but fortunately for us we actually are learning more we're doing surveys and we've done surveys over the last decade because of the whole election 2000 we start to care about what local election administrators think so what we know that from David and my previous work is that partisanship often is a factor in the selection of local election officials either they're elected with under partisan label on the ballot or they are selected or appointed by a partisan official like for example the governor of North Carolina appoints an election board right now she is a democrat who knows what's going to happen in November if the republicans is going to win but when that's all said and done the majority of all the election boards in North Carolina are going to be two probably of one party and one of another now so we know that partisanship is a factor now and looking in Rick's book by the way a nice actual airplane read a Stephen King book as I read on the back he says in his that there is no question that democrats and republicans acting from their own views of the public interests tend to administer elections differently which is sort of at the very minimum the least the probably the statement that we can definitely say is perfectly logical not necessarily bad not necessarily the fox is getting the hens out of the hen house but something that you could see from people who are well human beings who act with certain motivations and there certainly is some evidence to support this hypothesis which I'm going to talk just a little bit about but that really was the motivation for our research question in the democratic local election officials those people who are running the nuts and bolts of the day to day operations of elections in the United States are they or do they hold differing policy views now keep in mind that what we're asking right now in this paper isn't are they behaving differently isn't are they doing things differently isn't are they hurting someone and helping someone else rather it's do they have differing policy views we think that that question is only the first question you have to ask in thinking about this analysis are their policy views really that different or and later on can they leave those policy views at the courtroom steps or the office steps or whatever but not only that we are also interested in something that I think we haven't yet explored enough in this paper but apparently we have a little while to finish the paper and that's the idea of the inter-governmental relationship between the locals and state officials there is a certain amount of partisanship that can interact with that relationship between the people who are running the elections the day to day nuts and bolts of the elections and the people with the Help America Vote Act in many states were given far more power over locals than they really had in the past so the relationship that is there is pretty important and so David and I and Don and Carol and Brady all ask in this paper this question of what happens when they come from different parties so I think this is a pretty key question in terms of inter-governmental relations and instead of too many ideas in one paper I would say there are many ideas in this paper but it's rich and not all over the place so previous studies there is evidence that partisanship is there in thinking about measurement of where do we see something going wrong what we're thinking about is well we can't say more or fewer provisional votes is either good or bad but what we could do and what we have done is look at this idea not that more or fewer provisional votes are counted by one ministry over another but rather are people who are state of democrats and people who are state of republicans do they have differences in the number of provisional votes that are cast and counted and it turns out they do and it turns out that they are affected those counts those numbers cast and counted are affected by the partisanship of the district the jurisdiction that the local is administering and also on the partisanship of the official themselves that's past research and so we have some of that and it's looking at provisional votes we go further with using another survey in looking at the attitudes of locals toward provisional voting whether that affects or is related to statistically the numbers that were cast and counted and you can read we at least have some evidence on provisional voting that the attitudes of the officials have are related to partisanship and not only are they related to partisanship it's related to the outcomes but that's on one type of program I think we need more study one thing that we've done one more minute hold on a minute thank you I'm like oh no David we'll be mad later the race we have this great data from the congressional research service Carol and Don had collected and we have information about the race of the local election officials and it turns out just the vast majority of local election officials are majority they're white even in the VRA section 5 counties they are white officials now this isn't necessarily good or bad but it does say something about representation and a lot of the very rich issues that we've been talking about today in terms of local election officials and election administration more generally but so our bigger question is now though let's take another look at this data is are there differences in some of these controversial issues bipartisanship and so I'm going to pass the mic over to David now perfect hear me now so we're focusing mainly on the opinions of local election officials in the United States they can support for a number of reasons centralization, we've got a lot of discretion the concern that their policy preferences be influenced the way they carry out their job so number one they may be purveyors of bipartisanship in election administration number one but number two they're also useful observers of what election administration is like where they work and the comment on that is a highly political as a partisan and are they happy with the state officials with whom they have to interact so data in the paper we have three different national surveys of local election officials to be examined most of the evidence I'm going to show you today is from the 2007 survey but I'll talk about some of the others a bit these are national representative surveys of local election officials and then what we did is we also compiled some of the official their party affiliation and the manner in which they were selected or appointed where's that with our survey data as well the so as I mentioned before I think there's sort of two perspectives here on where the partisanship comes from I think this has been touched on in some of the previous papers may come from within the official local official may try and tilt things and help his or her party but it also comes from outside sources if the heroes in Ned's paper for example Speaker Randall or John Jay or John Quincy Adams or Secretary of State of Florida or Secretary of State of Ohio right now or the GIV in Wisconsin no matter how virtuous they are they still have to deal with the storm partisan conflict raining down on their head and they have to take sides in those conflicts and in taking sides they have to deal with the anger from the losing side so a couple different ways we try and look at this and what we hypothesize there's going to be more partisan conflict in the largest local jurisdictions with the most voters that parties act strategically if they want to manipulate the election procedures they're going to hunt for the places where there's the most voters so they're going to focus on the most populated local jurisdictions to try and do so whereas in small rural county they really don't care about the administrators because there's not a lot of those influence out there swing states some already mentioned that that's a big source of partisan conflict and we haven't talked about Hava that much but local officials report quite varying views about whether they like Hava and particularly whether they have difficulties implementing the Hava requirements so we think that's another source of their may color their views whether they think the election administration is highly political or not so to get to some of our results the figure here shows just starting with basic political views the surveys ask them place yourself on a scale from one to seven one is extremely liberal seven extremely conservative and this is simply the mean ideological self-identification that they gave us so the bars on the left are in small jurisdictions we define that as this local jurisdictions serve less than 40,000 voters in a national election a large one serving 4,000 more and in the small jurisdictions all the local officials are being slightly conservative like the American public the Republican officials are maybe half a point more conservative on average than the Democrats in the non-partisan ones but in large jurisdictions you see that gap widens the difference between Democrats and Republicans on average is more than a point and a half in large jurisdictions and basically that's a pattern that repeats itself when we look at specific election law policies one of the surveys asked a question about their support for a photo ID requirement from zero to 10 zero supported at all 10 extremely supportive jurisdictions on average is virtually no difference between the positions of the Republican or Democrats or non-partisan local officials in large jurisdictions that's where the differences open up the Republican becomes more supportive the Democrats and the non-partisans become less supportive of photo ID and we see the same basic pattern in other policies other anti-fraud policies like the non-national vote in liberal policies like election day registration automatic registration no difference in the small jurisdictions between Democrats and Republicans but significant differences between the two parties in the large jurisdictions the the surveys had a separate set of questions that asked the local officials to comment on what election administration like in your state or in your area so one asked how contentious is the environment in which you administer elections so this just shows the histogram of the responses there's quite a bit of variation some describe it as extremely contentious some describe it as not all contentious in the response in the middle another question asked how satisfied are you with the state election administration in the state where you work here the responses tended to be more positive on the whole although again 15 to 20% of them give answers toward the bottom half of the scale so there's some unhappiness there as well so the next thing we did was we examined the predictors of their responses on the election administration environment in which they serve sort of cut to the quick here we saw outside forces were much more influential on their responses on these questions so we hypothesized for example if the local official shares the same party as the state official then the local official is going to report less political conflict and more satisfaction with the state administration whereas if the local official is the opposite party and the state official report less more conflict and less satisfaction but we generally didn't find that instead the size of the jurisdiction and difficulties implementing HAVA were stronger predictors of their reports of political conflict and happiness there's a brief question about whether they support moving the election administration into civil service not a lot of support for that and less support among those who are elected local officials whose pork chops would get cut under such a proposal so to wrap things up real quick I would say one sort of caution here these surveys were conducted a few years ago it's safe to say that since then certain attitudes toward election laws have probably hardened even further particularly in the photo ID issue so if we did a national survey after the fall elections we might see more events of partisanship but generally on the policy preference side we only observe differences between Democrats and Republicans in large jurisdictions in their own reports of the environment in which they work about conflict and partisanship those reports are influenced more by outside forces than their own party affiliations so we'd recommend being cautious about what to expect if we switch to the non-partisan administration Yohane, hear me I'm going to bring up your picture, Dan Right Let me start by first of all thanking everyone else there at Irvine for making it possible for me to be with you virtually and not physically I was very but hoping to come there and disappointed that I'm not able to be there in person I disappointed largely because I was really looking forward to the opportunity to get feedback from all of you on what is very much a work in progress so I was especially happy to be invited because its theme addresses what I think to be the biggest piece of unfinished business on election reform in terms of what's happened in the last 12 years since the 2000 election Rick Hasen as well as Ned in his keynote I've been able to hear all of the presentation so far through the webcast they both alluded to this and in particular to the fact that my own state where I am now Ohio is in some ways an example or both sides of what's wrong with the way that we administer elections now so I've got my right so in the past several years in Ohio we've seen first in 2004 major controversies by our men for public and sanitary state to handle all that for example with refusal to accept registrations on 80 pound paperweight decisions about increasing provisional balance controversial decisions by our democratic secretary of state having to do with the window for simultaneous registration and early voting as well as rejection of certain absentee ballot applications that were sent out by the Nantane campaign and most recently as again Ned alluded to controversies with our current Republican secretary of state John Fustin acted in the way that many people including myself applauded by opposing a Republican ballot ideal but more recently has seen to follow the party line on issues such as provisional voting early voting as well as a redistricting commission initiative of which I am for you on that as a color by that the balance it seems to be really hard to deny that in the area of state level election administration we've got a serious problem and going back to something Dean Lohanstein said earlier in his previous work from which I've learned I think conflicts of interest are the best way of understanding what's wrong here conflicts of interest between on the one hand state election official obligation to administer and enforce state election laws impartially with regard to partisan consequences and on the other hand their personal interests in doing well by their party so even if there certainly are we've got really deep and serious conflicts overvalued in the area of election administration between access and integrity for example in case of things like voter ID and voter registration hopefully we can overcome our consensus on that issue to reach consensus on the need for impartial election administration and if we want to look at a model that might work Wisconsin seems to be to be a unique example and I think it's a different way of course characterizing and categorizing the institutions that run our elections but as I've explained in my paper I think it's really the only true example of a non-partisan election administration institution at the state level in the United States so in the remainder of my remarks let me first talk about the context of Wisconsin Government Accountability Board second some of the major controversies it's faced in the area of election administration and here are some kind of conclusions as well as I just mentioned the context of Wisconsin Government Accountability Board is really unique my warmest colleagues and I at the police department talked about Wisconsin will have other state-level institutions in other western states and this book which we wrote back in 2007 for registration to recount that's when we followed it up with its reports for registration to recount we visited in 2011 it's unique not only among the spot states but we studied books as others have pointed out I think among all state-level electoral institutions briefly we're kind of going through all the details that I mentioned in the paper the six-member Government Accountability Board is composed of retired judges who are in turn selected by many of the Board of Appeal judges those four judges were literally picked out of a hat and achieved justice of the Wisconsin Supreme Court in front of the rest of the board the nominees to the government's kind of voting order I should say the recommendations of this committee to the Governor must be made unanimously the Governor actually appoints the members of the Government Accountability Board for the initial commission when it was first established in 2007 the way the confirmation process worked is that three of them had to be confirmed by the State Senate which was then controlled by the Democrats three by the State Assembly which was then controlled by the Republicans or subsequent appointments members of Accountability Board must be confirmed by two-thirds of the State Senate which is a procedure designed to ensure the same degree of bipartisan consensus and to ensure that people who will impartially administer elections there are two separate divisions to the Government Accountability Board the Ethics and Accountability Division which administers and enforces campaign finance ethics and lobbying laws and the elections division which is the one whose actually I will be focusing on which administers election laws and the Government Accountability Board as a staff which is headed by an appointed director of legal counsel Kevin Kennedy previously served under the institution that was previously responsible for running elections in Wisconsin the elections work I won't go through the comparison with the Government Accountability Board structure and those of other states to say that the dominant mode of administering elections at the state level in the U.S. remains a partisan elected chief election official that is and a chief election official who is actually elected as a nominee of his or her party in a lot of the other states all of the other states we have some sort of either official appointed by a partisan body or a bipartisan board in most states that have bipartisan boards one party or the other actually has a controlling vote on that board the Wisconsin model is however more like independent electoral institutions in other countries there's some that have through independent agencies running their elections like Australia, Canada, India others that have some that I think were alluded to earlier even if they're not formally independent of the board government a considerable functional independent by virtue of that they are both a professional civil service with some practical degree of autonomy and partisan politics moving on to the controversies that the EAC chief has encountered in its first several years I talked about five in the paper countries that were voting for registration absentee and group voting voter identification reporting of results in a contested state supreme court race and finally the recall elections I'm going to focus on two of those in the interest of time and that are those are group voting identification probably election administration issue in the states since temporary focus on election administration really began in 2000 Wisconsin's public state legislature and active into law a relatively restrictive voter identification law in 2011 requiring government voter ID the government accountability or made rulings that were controversial especially among republicans on two issues 2011 law allowed student IDs identification but required that they have an exploration they didn't also require those institutions that might have learned to be accredited the 200s had to deal with whether colleges and universities could put stickers on the IDs with an exploration they wouldn't have to qualify the board said that they could the 70s shoe had to deal with technical colleges whether those were colleges universities accredited colleges universities under the meaning of the law and the board said they were I think both of those decisions were justified textualist interpretation of the law what's really interesting about this controversy however is the attempt by the state legislature and government to who was potentially interfere the government having knowledge decision and this is the result of the law that was also enacted which it allows a legislative committee to require that agencies including independent agencies like the GAP in Wisconsin promulgated a rule and if the rule is promulgated gets approval by the development authority and the reporting can take effect and so that is what the joint legislative committee actually did in case of his policy decision that had been made by the Wisconsin and on ability to work on a party line 6 to 4 pro with all the Republicans supporting opposing it. That was at least when moments mooted by a sense of important projections that were issued against Wisconsin's voter ID the law. I highlight this however as a potential threat to the autonomy and the commitment to the agreement. The final issue I want to mention is the controversy over the recall elections which we have discussed in the paper. There were a couple of decisions of the GAP that were controversial with respect to these recalls 9 state senators subject to recall in 2011 for more state senators along with the government for 2012. What had to do with the timing of the recall elections there were 6 Republicans and 3 Democrats subject to recall and the government sent those elections on different dates because there were some factual issues that had to be resolved with respect to the Democratic office holders challenges to recall petitions. I analyze that controversy to some extent in the paper. I think the court was justified in this decision in 2012 earlier this year we're facing controversy having to do with whether it was actually reviewing the petitions almost a million or with a tutorial recall to make a long story short the walker assumed in Waukesha County Kyrgyp Court and one internship which was later reversed on grounds requiring a more intensive and time consuming review by the GAP one that I think is my reading of the law more intensive than the law actually allows analysis that I go through in my favor coming to the end of my time on the question whether the government accountability board has been a success my tentative answer to this question is yes I think that it has done what it was created to do which is to impartially in faith and for selection law I think it's true we've seen more complaints from Republicans and from Democrats about the government accountability board's performance and I think it's safe to say that a lot of Republicans who voted for it probably now were correct to vote there weren't any Republicans who opposed it at the time that this was enacted until long 2007 on the other hand it is not the case that the government accountability board has decided all important election administration cases on the cross-clatch Democratic side I mentioned decisions on voter registration, early voting as well as the rejection of Democratic challenges from there to the recall politicians of Democrat office holders in which the board is undecided for the purpose of Republicans on important issues at the end of the day however I don't think the balance of the number of Republican favorite decisions versus the number of Democrat favorite decisions is really the best way of evaluating its board and evaluating it is what has been faithfully, carefully and impartially administered the law on that sport my view is that they've done quite well second point by way of conclusion there are some real threats to the independence of this body most notably this administrative rulemaking process that was altered in 25 in as well as a provision of the rules regarding challenges to state agency decisions which effectively allow jurisdiction shopping point and I guess question by way of conclusion what are the prospects for exploring this model I guess I have to say let's sit outside my area of expertise to matter of political reality rather than law or policy but my view is not terribly optimistic much as I think this is a model that we are really exploring and I think this is largely because the increased hyperpolarization of our politics in general of which incidentally has been the leading example I mean in the seven years or so the five years or so that we've been studying in the state my more it's been a tangible increase in the level of polarization in the state that once had a really strong good government culture which largely counts for why this awarded to it gets inattentive to law and implemented in the first place so I think it's going to be difficult in the future to get this kind of body and attitude through other state legislative bodies as the champion was democracy might be an alternative we had an issue of that between us I hope they try to implement a similar kind of non-partisan institution but I'm not terribly optimistic about that without your reform either I wanted to integrate I'm almost done in work because I don't really think there's a big political constituency for this kind of reform one that's likely to be willing to put up a substantial sum of money and in the real world it takes to get an initiative on the ballot to develop a successful team so with your minds there are three conclusions I have to deal with how the work to its independence and prospects we're informing it I can just pose with a couple questions which I'd really love to get some of the other things that I should be looking at I was originally intended to look at the performance of the ethics and accountability division as well as the collections division with respect to election administration I would love that to happen this is a question especially if you're a political scientist there are there other ways of measuring the performance of these special students who have these ideas on them so thanks again for allowing me to participate and look forward to your comments and questions it was a surprise to me in the previous paper that these partisan officials weren't that much more different than they were I mean I would expect more and it was a surprise to me to find out that Wisconsin has a nonpartisan election board that's amazing now we have two discussions Samuel Lysikar showing on first and he says 16 minutes for him I'll give him that let me start by joining in with everyone else and thanking Rick for this opportunity we've had the privilege in this field of a number of significant conferences over the years and it has the effect of when they work well and this one has worked well of sharpening the issues and setting the agenda for the future and in particular is the day where Zahn and the conditions in the room become more and more oppressive you have to do a lot of hard thinking otherwise you're overwhelmed with the question why my fear I will try to resist that because it just started speaking the air conditioning went on so it's just great so I wanted to distinguish questions that have been presented recurrently today and that somewhat confused the issue because they run into each other and the three questions are what is the optimal form of institutional design if we were starting from ground zero how would we design certain kinds of election institutions to achieve certain purposes and there are disputes about that there are disagreements there are different values there are different objectives but that's one set of questions what's the optimal arrangement to achieve whatever aims we want to in this area the second is how do we assess the current institutions that we have are they suboptimal in their suboptimality because real life is always suboptimal in their suboptimality is it serious or is it not is it a good or we should be really worried here a little worried much of a difference and the third question which also runs into this is what about the political economy of reform are we forever doomed to the world of the second best so whatever we do it's just going to end up well there will be problems there too and the forces that would permit political reform at any given point might give us something more so the way I think about this is for the papers and I want to start with the papers and then I want to move on to where they fall into the kinds of questions I think are underlying this entire gathering is the first question is what is the right institutional design for various election related functions and all of the papers back up into that they're all empirical papers and they all want to to greater and lesser extent hint at a message about the form of institutional design but they don't take that question on directly what they do instead is they ask a question which is how much is at stake depending on the choice of institutional design or another way of framing it would be what has been the performance in office of various institutional actors and as I said before that helps us inform us is should we do something should we worry and then that leads us into the question of well maybe we have the right institutional design if we're getting it pretty much right now the three approaches are all basically directed toward the second question and apply prescriptive answers toward the first question and what's interesting is that they have three different methodologies for addressing this question three very different social science tools that are each valid to its own extent and within its own framework so Elmendorf Spencer we get an experimental setting through lab projects and controlled simulations Kimball Croft would get the survey of beliefs and values of the real world participants of the lab participants and Takaji would get a qualitative observation of a single institutional actor in conditions of extreme stress as five examples of how the GAP responded in Wisconsin okay now let me raise a few methodological issues just quickly and I think Justin will have more of this the Kimball Croft paper you have the first problem it's surveys people answer surveys in self-serving ways 40% of the subject responded to the surveys that means 60% didn't if I'm not empiricist but I think that follows and so we have to have some assumption about whether the people who responded or liked the people who didn't respond about the generalizability about whether there's you know correlation between between the two sets but what worried me when I started reading the paper because I wanted to know what these people like this is like a black hole for me I just don't have any idea how the system operates on the ground I worried when I got to page two and I said if there's little difference between Democrats and Republicans little reason to change partisan selection of election officials I said wow that's a lot of work to be done by a survey instrument I'm not you're going to have to do a lot to convince me of that and the survey asks basically how do you feel about certain issues where we think there might be a propensity for divisions among partisan lines divisions in administration what I worry about is not most cases I worry about the cases that matter and I worry about the propensity to cheat only when they're high stakes and I'm not sure that the survey of general beliefs can pick that up and that's certainly been my experience with election officials who I encounter only in the circumstance when I sue them so I'm guarantee it's not a cozy relationship but we get to know each other a little bit there and what's interesting is that they still pick up substantial differences the way they report the differences covers it a little bit because they have this big divide between large and small jurisdictions that's the central metric I'm not persuaded that the Mayberry effect is going to cure the problems in Cuyahoga County and Ohio Mayberry effect is I like all others in this room should have mourned when Andy Griffith just died and so it's the small town better values of America that's not enough for me I want to know about where the action is in the big cities where there's a lot of votes where a lot is at stake where we're fighting the battles over voter ID where we're fighting the battles over early election days I don't want the small towns where everybody knows each other and leaves the front door open and then a problem that runs through these papers is when you slice your observation you may miss a bigger part of the picture a lot of democracy is the public faith and you do not pick up the public faith on the integrity of the system necessarily by asking the internal participants how well they think it's going there's an external validation that is much more complicated and may in fact be doomed not because of the actual performance of these people because of a perception and that's important in election administration what happened to oh I skipped Elmendorf Spencer altogether that's what I did okay so Elmendorf Spencer I have an issue here as you would expect why else am I here it's miserable in this one this type of work they do is experimental settings I've run experiments I know the difficulties of getting a situation where you can test an effect and get numbers big enough to have a strong effect that you can report and it's a legitimate method we tend to feel more comfortable when we trust the lab subjects that's why we like rap experiments once you get to humans and to college students in particular you get all sorts of methodological questions raised but I accept that they will be a good group to test the problem is I'm not convinced by the hypothesis or I have questions about the hypothesis my hypothesis would not be that the AG cheats in every case that the AG cheats in every referendum that has a redistributive effect my hypothesis would be the AG cheats when it's prop 8 the AG cheats when it's a big front burner issue that's going to get him or her a lot of plaudits and is going to make him or her the next governor right so that you can't test with the data set big enough and so you've expanded the data set here in order to get to generalize the effect and to get the numbers up high enough they acknowledge that page 37 they say they may cheat only on important ones and so forth the flip side of this paper is the public perception they try to take this on probably the public perception is that there's a long line of behavioral research going back to a very famous paper called they saw a game which is a paper where college students from two schools do the exact same football game and we're asked what calls did the officials blow and not only did they pick did they have high numbers but they also had no correlation between which calls the officials we all integrate information in ways that are good for us this runs through both of the first papers and the work that I did some years ago on self-serving biases it's a way we have to understand ourselves that we are objective and so the participants are likely to perceive bias in ways that further their political views regardless of the intentionality of the actor so again as with the paper by Martha and David you have the problem that there's another world out there of external validation that may be affected by what you're doing I move quickly I had to say about Dan's paper except that it's only one observation and he can't overcome the cheese effect which is this is Wisconsin you know they're nice people in Wisconsin my wife is from Wisconsin they're still nice people I think you know my wife is from Walkishaw walkishaw by the way and the city of Walkishaw so nice they named it twice New York or something like that Walkishaw these are good people they have bad choices as spouses perhaps but they are good people and Wisconsin will function under any system in the last election I was monitoring problems on election day in Wisconsin what the problems was there was a line a little bit of a line the parking outside said 15 minutes only so people were circling the block because they were afraid to park for 15 minutes only in case they couldn't get come to New York we'll teach you how to park any goddamn place you want ridiculous so there may be dysfunctionalities in other domains in places that don't have this civic tradition that are hard to pick up from within the study of Wisconsin whenever you have one observation you don't know you have to make some assumptions about generalizability okay let me finish take my last 5 minutes roughly 4 excellent on questions of institutional design is really what we're getting at I was very jealous of Nick those who know me know that my object in life is that everything should be reduced to a 2x2 matrix I couldn't quite get there so I got 3x3 and obviously there's more points you could run down the y-axis but we're talking about nonpartisan bipartisan and partisan institutions as ways of administering elections but it turns out that there are different functions where different mixes may be better or worse or more problematic not so problematic so take the counting of votes I don't want partisans counting votes right you don't want people one side counting all the votes because that's just a recipe for disaster we saw Tom Beach County I hold it up I think this is a vote for my guy you know that's not good but it's not clear to me that we need to invest in nonpartisan which is most expensive for telling it's a pure zero sum game put three republicans three democrats in there make them count it together they'll neutralize each other they have every incentive to observe it's transparent that's the kind of institutional setting where it may very well be let the parties administer it because they have no common interest and the bottom one on redistricting I again don't like partisans doing it and as Bernie pointed out this morning if you have bipartisan doing it they may actually be able to externalize costs on the unrepresented party the sweetheart bipartisan gerrymander is a way of exporting costs on to us who have nobody to vote for in a meaningful way without them internalizing that cost so redistricting is different than tallying and I think in the redistricting context is a reason that every country that has put the question before itself of how should we design the institution either ab initio or now that we've had a political crisis of some kind like world war two in britain what are we going to do now that we're really confronting the issue of institutional design and they go over to non-partisan administration is actually interesting and it's the focus of this conference and what's interesting about the three papers is that they pick up individual places within administration where you have a non-partisan body as Dan's GAB which is also a little bit of a bipartisan body because the appointment process as he describes it is actually rich and complex so it has elements of both but it fundamentally operates toward a non-partisan type institutional arrangement and on the other hand the other papers deal with partisans who have moved in the direction of who have taken over some kind of election function and the question is if we were starting from scratch would we have non-partisan administration for the elections would we have professionals for these kinds of functions the answer is probably yes is this an area where we could trust bipartisan competition because of a zero sum game maybe if we could get a really really good three three group in there we could trust that there would be no partisan distortions but election administration requires the capacity to administer so there would be tremendous cost to this in terms of the basic inefficiency of the institution that would result we would have an FEC and my view of the FEC is it was designed to fail and better than any other institution in Washington it achieved its purposes but it's designed so that it cannot act and we wouldn't want to build that in so even though we could conceive of a bipartisan stalemate on misuse we would sacrifice administrative efficiency and now we're in the domain of partisan and to the extent that the papers are read and I don't think I read them this way and I don't think the authors want them to be read this way but to the extent that the papers are read as this is a good arrangement I don't think that's the conclusion that follows what may follow from the papers if they can establish the empirical question that they set out to address if they prove it what would follow from the two papers that address either the AG's performance in California or election administration around the country is it's probably not optimal it probably doesn't kick in all that often and maybe we'd be willing to live with it because it works okay so it doesn't address the optimality point it addresses is this worth wasting our time over our limited reform initiative our limited resources to go after this and I think what the papers do is they say if you really try to tease out the way this works in practice and you leave aside the big question of the public perception of misbehavior which is always critical but if you leave that aside it may be that these people are honorable and they mostly do their job in the way they should and I think that the points that Ned and Heather were making at lunch kick in here people want to have a good view of themselves they don't want to think of themselves I resist Machiavelli I'm a huge fan of Machiavelli so that was just a bad comment but they don't want to be evil they don't want to be thought oh I'm just here to be instrumental for somebody else they want to have a self-perception that they basically do their job honorably and I think the papers indicate that maybe they are doing their jobs pretty well under a circumstance where we have a decidedly sub-optimal institutional arrangement I don't know how we're gonna top the Wisconsin versus New York parking example but Justin Leavitt is in charge of trying by not even attempting so I too want to start as everybody has started is everybody should be starting by thanking Rick and thanking UC Irvine not only for assembling us here today I love these things because I get to hang out with all the people I like to see all the time but also for leaving the institution I'm currently at in such fine hands and also for furthering my fitness program with the sauna you've instituted here I think that I'm sweating more because of who came before me if who I have to follow and the fact that I know that I stand between you and the end of the day that I am because of the temperature but I'm gonna try not to parse out which is which I'm gonna go through the papers as Sam did fairly quickly and then try and draw back to a broader point at the end for Elmendorf and Spencer I thank you because you can't ever get too much good empirical analysis and it is heroic I know to report research with a null finding but I thank you for it because it's extremely interesting problem it's a valuable investigation and it's a useful discussion methodology and it lets both you and others replicate the work and see if there can't be a finding of some sort in the future this is a great step there are a few specific comments that I have on the methodology that you chose and including the big one that you note whether the initiatives are polarizing as a post-treatment effect and the better that the AGs are at doing their job the more it's going to doing the job that you suppose that you hypothesize the partisan job the more it's gonna squelch the effect that you're testing for so if they're really good at rigging the game that means that you're gonna be focused on the wrong ballot initiatives and wrong measures which means you won't be able to pick it up or something that it's a difficulty I'm not sure you can compensate or you recognize it for well but maybe something that's inherently based into the measuring whether an initiative is going to be controversial based on the outcome of the initiative after they've gotten their hands on it I have questions about the the R squared values for some of the models they're not very high which means there's a lot of other stuff going on that we're not measuring and that brings me to about readability it may be that that is a way to influence the elections but if that's the second or third or fourth most effective or at least the second or third or fourth least cost and there's an easier, better, bigger way then readability is not going to be a step that chief election officials or AGs take all that off and they're going to go to whatever's easiest and least cost so it may well be that you identified a potential tactic but at least in California there are easier ways to rig the game and so you're not picking up it may be a tactic but you're not picking up what's really going on I am curious about you list variation in a bunch of states and you've got California at about a 1.8 variation in reading level from top to bottom and you said that you found elsewhere or you have seen research elsewhere indicating some of the states run from 1.1 variation in reading level all the way up to 26.4 variation I want to know about the 26.4 state and I want to know if there is some strategic manipulation of that going on or whether that's completely random you happen to pick one and I understand what you did that's sort of lower on the scale but when you've got that large a swing I suspect you may find a much bigger effect in terms of the the real people which we'll call college students for this I thought there was going to be a difference they saw a game point which is that I think they actually saw a game I think that you've keyed them to find bias you've said here are four types of bias can you find it yes or no and everybody wants to say yes I found it look there it is and so that drives up your results on whether you're going to find bias or not I don't know whether it's possible to reduce with a question like if you were a court would you strike this down a little bit of the stakes of can I find it out of the mix but I think part of what you're observing is the eagerness of college students to support you in your surveys and to do well in your surveys not least because you have done something I told you about earlier that I love and I'm going to use in every empirical project I do now I encourage you to read this paper if for no other reason it has an appendix with the actual survey instrument in it and I want to read to you of this letter to the college students to get them to participate thank you for choosing to participate in this exciting study of ballot missions and I don't know who wouldn't be jazzed up after that you would ever know if you asked them about it I'm going to have every paper I look at this is an exciting paper about this is an exciting study about that's going to be everywhere now and I thank you for that I have learned something very important in this paper I thank you because we can't ever get too much research on local election officials and I really think we have a tendency particularly in our profession to focus on being in shiny the president, the supreme court when really the front lines matter so so so very much and there's not enough attention and I love the fact that there's more attention being paid to the people who are really administering and delivering us all the perhaps bigger and shinier the most of the surveys that you found on polarization are from 2007 boy I'd be curious whether that shows three years of relaxing in the aftermath of a hyperpolarized election and I wonder whether you would find the same results from 2009 that is, you know, is there even more ideological polarizations, there even more straight for election officials the year after an extremely tenacious election rather than three years after a year before I wonder whether the fade effect is as prominent as it might otherwise be you measure differences in attitudes on a bunch of policies and the photo ID one caught my eye I wonder whether you're capturing actual differences in how photo ID requirements work so ID is not uniform, there are lots of different things that people can show, some of them are strict ID rules some of them are not, some have different types of ID you're allowed to show and whether people's support or objectives might very well depend on what the nitty-gritty is and what they're used to, now I don't know how you ask the question, the question might have been generic but even if the question's generic it might not necessarily represent their experience so you might not be asking a uniform question on a uniform policy you might be asking a question on a policy that people in different states are viewing very, very differently I had two speculative hypotheses about what's driving the difference and I just don't know whether this is causing some of the differences that you did find you find a difference in attitudes toward reforms more, I think more synchronicity more common ground on tightening up the election process and less common ground on, for a better word, of using access and loosing it up and I wonder whether that's a version to critique more than anything else, it seems to me that it's easy to critique at a local level and to suggest expansive reforms at a state level or at least that's what I note simply from watching that is not empirical it's very easy to go in and target very localized decisions and when seeking to expand things like registration, election day registration or NBRA enforcement at agencies that tends to be focused on a statewide level and so maybe they're responding to a brief about the stuff that looks like fraud because the attention is directed globally but they haven't gotten pull or praise locally, the pull or the praise for broader access to voting is more statewide, I don't know if that's a potential cause for the difference that you found you also found obviously the partisan differences are higher in more populated jurisdictions Sam touched on this a little bit I wonder whether that's a campaign effect, whether they feel the need to differentiate the partisan elected campaign or not or whether it's party selection maybe parties are recruiting more ideologically driven individuals in higher population areas you may be able to test this at least a bit by looking for ideological differences in statewide positions and bigger states may have a broader ideological spread than smaller states it may be that for example the Delaware party it's just as important to have an ideologically driven person but not quite as much of a campaign effect as it would be in California for example that you might find more, you might be able to tease out this difference of whether it's their need to campaign on different platforms rather than party recruitment driving ideological differences from the ground up if you are able to conduct a study statewide to see if bigger states have show one difference and smaller states show another that's a thought for Dan for Danza, a huge figure and given his projection on the video today I mean that quite literally you can't ever get too much Wisconsin for me, my wife's also from Wisconsin and obviously has the same difficulty in spouse selection I hear great I hear a lot about how great Wisconsin is and I thank Dan for giving me more of the same this is not the main point of his paper but he points out a decentralization problem, he's right but the comparison with other countries is particularly hard maybe this just comes from living in LA but Denmark and Sweden, two countries he holds up as prime examples, this happens a little bit in mixed paper as well they both have fewer people than LA County and so perhaps some of these institutions are much easier to put in place in places that just aren't that big and maybe size actually does matter I'm also not sure about the link between decentralization and partisanship that doesn't exactly claim one but he's making a point and so I wonder whether it's related whether he thinks it's related and if so what ways and I'm not sure that's an easy question to answer Wisconsin certainly takes decentralization to extremes as he points out it's all municipalities rather than counties and that drives everything down to a local local local level whatever you believe whether it's beneficial or not that makes a strong government accountability all the more important go to Orbad Dan chooses five topics and says that the government accountability came out pretty well there's a methodological issue which he knows about which is he thinks they're good decisions most of the time so do I other people might disagree and we're not sure and so it's very tough to measure whether these are fair and not just balanced by the way the Waukesha County election results as being a major contested issue I understand it was contested but just to put this in a little bit of perspective the election results that were severely delayed came in six hours after the polls closed and so maybe that speaks to all of our need to ratchet down from the outside the expectations that we have in addition to demanding performance of the election officials six hours to wait if caused by a troublesome reason may well be troublesome but if it's just six hours because they were actually lining stuff up that doesn't seem like a crazy abuse of power to me and I love the fact that Dan pointed out something that I did not know the legislature is I think quite stark change of control over the government accountability board I wonder whether as the system within which the GAB works changes whether the GAB can remain the same it will be really interesting to see whether or not the legislature chooses to use this sort of override prerogative of forcing a vote on contested issues whether the government accountability board maintains the same level of service whether good or bad whatever you think of it that it is provided so far because I think the system is going to be very important there's a common feature to all of these papers and this leads back to the questions that Rick posed at the very beginning of the conference and I have here a different set of conflated questions than the ones that Sam identified the papers here all talk about partisanship but they're all talking about different kinds of partisanship in very different ways and that's true throughout the papers throughout the day it's a common feature of work on partisanship and both scholarship and lay audience it's something I'm writing about man and this is I think to Bruce's point earlier partisanship isn't uniform it can mean the method of selection you're chosen in a partisan election or you're chosen by an official who has been chosen in a partisan election you're appointed it's why both elected legislators and Supreme Court justices can be described as Republican or Democrat even though that means very different things and how we expect them to operate it can mean partisan effect and results that favor Republicans or Democrats it can mean a whole range a whole spectrum of partisan intent a lot of people today talked about ideological partisanship taking positions that are consistent with being a Republican or Democrat but simply because you believe those positions out of the spectrum of possible options are correct and either your party has informed that ideological position or you are tailoring your ideological position that happens to end up something that the party supports the party is absorbing it but either way around that ideological partisanship is different from a responsive partisanship taking action because of the way particular voters will vote which is itself different from what I call tribal partisanship which I think is what most of the reforms are aimed at taking action not because of what you believe ideologically not because what you believe what you respond to what the voters want but because it will tangibly benefit my party tomorrow Republicans or Democrats I am acting primarily because I want a Republican or a Democrat to win and that sort of partisanship is very different that also means by the way that when we talk about non-partisan institutions we mean different things we mean and here I take a note from Pam that there's a sort of negative liberty idea of non-partisanship it's targeting a form of partisanship that we don't want or that we want to remove or squelch I completely believe as Pam said that no one is actually non-partisan but as lots of people much smarter than me and far more eloquent have said throughout the day there are people who all the time every day and most of what they do act in some different non-partisan ways that is they don't engage in tribal partisanship when they take an act even though they could even though there are no legal sanctions in place and I think that has to do with three different factors which we've also mentioned a lot today some of them are substantive rules that constrain partisanship don't eliminate it but substantive rules if you have to follow a certain substantive doctrine there's only going to be so far you're able to go with a partisan instinct some of them are structure I'm a huge fan of all of the structure conversation and we've heard a lot of it today it does play a huge role partisan elections mean that you would expect partisan attitudes at least different ideological partisanship otherwise there's no reason to elect someone as a republican or a democrat that is every time we have a partisan election you should expect they will believe different things or else the partisan elections not doing what we set it up to do there are also structures that seek to combat this partisanship and I will wrap up some of the structures do it well some of it do it less well the missing aspect in here I agree entirely with both Ned and Heather is norms situational norms that are powerful that don't bind everyone all the time but bind people surprisingly often in most of what they do we don't actually see electoral thunder most of the time and that is something to reflect on because there aren't often structural sanctions or rules based sanctions that stop it if something is stopping it despite individuals incentives to favor a particular republican or a particular democrat when they can it's got to be a more salient strong structural situational norm there's an interesting paper recently and this is where I'll close an election law journal by a guy named Michael Franz who points out the enforcement model what you got Michael actually the enforcement at the FEC and this was juxtaposed with his paper today on the advisory opinions where you might most expect tribal partisanship enforcement actions at the FEC there's a particular individual largely associated with a particular party who's going to be sanctioned in some very tangible way and there's a very easy mechanism to block that enforcement action you just need three votes and you need it along party lines and Michael's work points out that out of 1342 enforcement actions that he studied 19 had a deadlock along partisan lines and that to me that 1% if you even believe that to be tribal partisanship rather than something ideological that 1% maximum seems like something that we can actually take create solace that's the system working most of the time pretty well and with that thank you so do we have any responses from the panelists and then we can ask Dan alright, so I'll make a response really quickly by raising an issue that's often raised at election law conferences that has not been today and that is the idea of ecological inference so I'm not talking about racially polarized voting so much but I recognize attention between general trends and between specific acts and it's something that seems to have come up over and over in the different panels we have the heads remarks we have this paragon of virtue and Samuel Randall and then Heather is attempting to say wow, can we draw general can we make a system where that becomes the general norm that's certainly the case in our paper and I think that's a great issue that Sam has raised what we may be the most worried about are very outlier cases or a very specific subset of the cases and what our first stab at this what's great about presenting a working paper to conferences oh, we're still we're still working on this but we are very aware that some of the most important action may be happening in a particular way and I think that you're right in terms of general trends maybe this isn't something that might be as bad as we would have expected but some of the ways that we've thought about going about this or identifying kind of reverse engineering ways of thinking, oh, well what do we see that is the most biased and how can we evaluate what's happening there as opposed to predicting bias and things like that but anyway, just in terms of response to both of you I think that's a very fair concern to have and I think that it's something that as kind of election law community we need to grapple with because I see people talking about specific instances general trends and trying to wrap them all up together is difficult and I think that's something that we need to take more attention to yeah I guess the only thing that I would say additionally I don't disagree with Sam's observations taken individually I very much agree that the basic point of the project is not to say what's an optimal institution but where should our reform energies be directed I was actually surprised by our findings I thought we were going to find like through both measures of bias or strategic behavior we missed the evidence of it and the fact that we don't see the evidence of it suggests to me that well you know it's time to look in some other ways in some other places but this is you know one piece of a larger body of work that might ultimately help us to say something about where we should be putting our energies I don't know if Dan's with us I am you have any responses we can't see you just quickly so on Sam's comments I think you know because identification of these three distinct questions that are floating around in my papers is quite right I do want to say I'm a little bit disappointed when I you know Sam yesterday didn't tell him that it wasn't going to be able to come he said these examples where you could run but you cannot hide so Sam you went too easy on him my response to him was my doctor's got me all royed up so you can actually decline on him but you know it's certainly true that Wisconsin is a constant it does have a really strong progressive dimension a strong government culture I guess the same could be said of Wisconsin that is sometimes said about Iowa the contest of district in Wisconsin Wisconsin on the other hand I do think that we've seen a rapid deterioration in sort of the play nice culture in Wisconsin in recent few years and I talk about this in conflicts on the Supreme Court um but um um so as I acknowledge in the paper it's important to be cautious in that of exporting what happens in any other state or one state's experience to others but um there's a lot of thinking plates outside the big city all nice and western here um second on Justin's comments I um as Justin suggests I think there are two distinct problems partisanship and decentralization um in the U.S. election system um there's actually a third one that's really deep in mind and this is especially true as with decentralization partisanship when we contrast the U.S. with other countries but a relative lack of professionalization and sometimes not always but sometimes in competence like I think that we saw in the way that our elections were run on the decentralization points um it's true that some of the countries that are favorably to the U.S. here in another world much smaller but on the other hand there's like India that are several times larger than the United States which I think certainly have a much more centralized system have a much better system that said I'm not typically optimistic about the project of um federalizing election administration at least establishing a strong federalist army like that which exists in other states and looking to the failed experiences cleared out in other countries in the U.S. as well as even worse the EAC um it's hard to be optimistic about the project or um moving more forward to the federal level so I think we're pretty much stuck with state level and local level election administration in the United States whether we like it or not and the opposite question is optimistic and done better okay from the audience I want to pass the microphone around so Dan can hear okay um moving beyond just the critiques of the strengths and weaknesses of your research um sort of extrapolate from a bit of personal experience to a suggestion and see what you think about it um I gave up my membership in the party when I became president of the local chapter of the league of women voters in the city of Los Angeles and it's kind of liberating um so I'm wondering what you would think about having the government take less role in promoting parties in general should government officials still be actually registering people in parties um should election administrators when they become election administrators be required to give up their membership in parties because once you start not being at a party I found you start no longer walking that walk and feeling it as much as before and perhaps picking up on Ned's comments at at lunch um maybe judges as well especially when they're going to be involved in election decisions but maybe all judges should be required to give up their party affiliation when they become judges just like lawyers can't be members of judges can't be members of the bar anymore once they become judges so what do you think about actually nonpartisanizing election administrators personally perhaps nonpartisanizing electors, the voters by no longer registering them as party members I have a couple of responses to that and that is that there is some research um sort of in the urban politics tradition examining um where do I turn on one here okay good so my response would be that there is some research some of the urban politics research looking at city governments that are nonpartisan where people run they run under a nonpartisan label and and it's not entire so from one study that I can recall the evidence was that the members still had very distinct partisan attitudes and I think that if we were to sort of look at our experiences um you know and sort of look at one by one anecdotal situations we would think that that kind of still exists that you know that in none when you look at a school board or something you know that they're making decisions that are based on their values that are based on attitudes that well they quack like partisanship they walk like partisanship and they even swim like partisanship so let's call it it's not all about I mean then my response might be something like well it depends on the person too I mean I am I know a lot of journalists and myself too as a political science professor I put unaffiliated when I registered but I still have very strong attitudes about how things should be or else I wouldn't be a professor and make really rotten money I think that and I'm not a hero a couple quick things I think creating a new institution for election administration very difficult getting a political coalition to support that but I think it's more realistic get a political coalition to support sort of conflict of interest I can suggest I'm not a lawyer so I don't know about the first amendment you know she's just saying if you're if you come in officially you can no longer affiliate that sort of thing most states in the US don't require you to declare a party identification when you register to vote so most states are unlike California in that respect so they're already doing what you want on that score quick point Wisconsin actually does proclaim to both his government accounting accountability board members as well as staff engaging in political activities I think that's a good thing but I should be realistic that in itself it's not going to accomplish a whole lot making short decisions made in the archival this is Josh Douglas so I think this is all interesting and good and we're talking about ways to get sort of partisanship out of election administration but I feel like there's an elephant in the room which is that when for the most contentious issues we'll tip elections the courts are going to become involved and until we figure out a way to remove some sort of partisanship from court decision making in the election area it's going to be hard to achieve some of the things that we're talking about today so I guess I was curious for a reaction as to whether this is even permissible if we don't also reform the ways in which we're invoking courts particularly state courts like the judiciary in resolving election disputes but we have evidence that partisan judges rule in partisan ways that's a problem and I wonder if having reforms for impartial election administration helps for the run of the mill things that we're talking about but when a close election gets within that phrase of the marginal litigation what do we do at that point isn't it really the courts that we have to worry about as well so I guess I can respond briefly to that and saying that maybe the prospect of judicial review is part of why the California Attorney General is not behaving more like a strategic partisan actor than we expected or it may be that their civil service norms are practices internal to the organization of the Attorney General's office that constrain from below what the Attorney General can practically do or get away with we haven't looked into either of these institutions in relation to this paper but it's a question that I think is sort of served up by our preliminary conclusions at least and even if there is some prospect of partisanship in judicial review if you don't know who you're going to draw as your judge or it may be that ex-ante it still operates as a constraint I think my observation might be in some tension Josh with what seems to be the premise of your question if I'm getting it right I mean I actually think the more aggressive judicial review of election and administration laws as well as administrative decisions made by partisan certain terms of state I think this is a really good thing and it's something we have seen a lot more of it since Bush versus Gordon especially in the last year or so it's seen the courts applying a very constructive role by looking over the shoulders both of partisan legislators and partisan election administrators so I even if we have every state to go to a Wisconsin GABA you know it's not just about legislators from enacting laws that are designed and that their own party often with slim military support but they don't really serve any destructive purpose and so it seems to me that the courts have played a really constructive role in the last several years on the fall but I sort of know decision to agree with every decision I think everybody can hear me I'm Joe Dunn I am former state senator and CEO of the State Bar so I'm monitoring that I have a question to the I have a follow up question on the nonpartisan judicial races idea because I think at least most in the legal community would agree I should say getting back to that concept would be good or then if not to go to an all appointed state judiciary and I know it's a mixed bank but I'm curious if any of the panelists could comment on how could we get to nonpartisan judicial elections given the white versus Republican party decision out of Minnesota U.S. Supreme Court decision by four decision the only one that Sandra Day O'Connor has publicly said she regrets her vote in that decision I just don't think it's an issue White versus Republican party establishes the ground rules for expressive liberties in the context where you have an election there's nothing in white versus Republican party that requires you to have an election in fact one reading of the case was Justice Scalia showing his disdain for the system by saying if you want to put it to an elective process you're going to have elective processes you're going to make voters aware of what the positions of the judges of the putative judges the judges to be are and the only way to do that is through a full and open campaign and it had the paradoxical effect of you know being on one reading and in your face decision you want to go this route this is what you get this is what elections mean in the American system you don't read anything in it that requires elections at all okay then I misunderstood there's several parts to this then one thing is could you have nonpartisan elections as opposed to partisan elections and there's some ambiguity in the law right now and on one reading of California Republican California Democratic Party case you could argue that a pure nonpartisan election might run into trouble but I don't think so because the way the court has scaled that back in subsequent cases and on a strict reading of again it was Justice Scalia there it's the act of forcing a party to have somebody who is not its choice as its standard bearer that is constitutionally offensive so if you have nonpartisan elections you don't have that so as a legal matter you could have nonpartisan judicial elections you could have appointed elections what you cannot have is partisan elections where the party doesn't get to choose and partisan elections where the candidates can't speak fully on the issues of the day the here to their problem is as Heather calls this problem often is the political reform problem and that's I live for many years in Texas and in Texas there's a big demand for merit selection and the proponents of it the most active proponents of it where the Republican Party where from the Republican Party until the day that the state flipped and the Republicans won every statewide election then Democrats discovered their meritocratic roots and Republicans believed in the people so that's tough that the political reform agenda is going to be state by state it's going to depend on the political climate and the generalizability I don't think there's very many legal restraints constraints in this area all right let's begin our ending here by thanking the panelists I wanted to my own horn but this was the hottest conference everyone's been thanking me but I want to thank all of you for sitting through a very long day thanks to again to bring our agreement the IT staff the PR staff the UCI political sciences and law professors under the banner of the center for studying democracy I just appreciate everyone being here today the good news is that there is ice outside along with light refreshments there will for the participants who spoke today there will be a shuttle going back at 445 to the hotel so make sure you're on that if you want to get a ride back and you can look for the papers in nine or ten short months in the UCI law review thank you all for attending and hope to see you again soon