Don't Be Silly – THE PCEA WORKED: A Rejoinder to Some Critics of Hasen's Slate Piece

[Image courtesy of me]

Yesterday, I blogged about Rick Hasen’s recent Slate piece criticizing Democratic presidential candidate Hillary Clinton for her sharp attacks on Republicans on election policy. In essence, I agree with this passage from Rick’s piece:

[T]he partisan way she’s framed the issue–by blaming Republicans for all the voting problems–makes it less likely these changes will actually be implemented should she be elected president. Instead, she’s offering red meat to her supporters while alienating the allies she would need to get any reforms enacted.

Not surprisingly, Rick’s piece generated some pushback from Clinton supporters; enough so that he posted an unusual (for him) entry at the Election Law Blog suggesting that the response he’d gotten was making him rethink his position:

I would say the responses fit into three categories:

1. There are no moderate Republicans who will deal on election reform. Republicans won’t support fixing the Voting Rights Act or anything else so there’s very little to lose (and, as I agree in the Slate piece, Clinton is advancing good policies and it is good base politics for her to give this red meat to her supporters). The examples I give in the eighth paragraph of my piece, where Republicans and Democrats have come together on issues, is simply too little, or the policies they’ve come together on, too insignificant.

2. The few moderate Republicans out there are more likely to respond by being shamed into doing the right thing than through rational discussion. (I’m not sure how to judge what is more effective, but I thought the Bauer-Ginsberg commission was a good example of how things could get done with the rhetoric lower.)

3. The comments of [fellow Presidential candidates WI Governor] Scott Walker, [TX Governor] Rick Perry etc. about the extent of voter fraud and the policies they have adopted are so outrageous that they deserve to be called out for their bad behavior. (On this point, I agree, but I don’t think … Clinton, who has about an even chance to be the next President, is the one to do it. I try to do it all the time on the blog when the issue arises, and many, many people write about this.)

I usually don’t have doubts about the positions I put forward in my opeds and commentaries, but this pushback has been so strong from many people I respect that I will think on this some more.

That post led me (and apparently others) to reach out and tell Rick we thought he was right the first time, which led him to post another entry later in the day:

[A] number of people in the election reform community have written me in great support of my Slate column after I mentioned the general drubbing I was receiving from others. The argument from these folks is that on the ground in the states, Clinton’s comments are making achieving modest efforts at bipartisan election reform harder. I’m also hearing that the comments are turning off some Republicans who otherwise might have been amenable to universal voter registration.

But the pushback from the left is pretty strong:

Elias Isquith at Salon: “Yet out of all the columns handwringing and concern trolling over Clinton’s recent liberal bent, I’m not sure any have been quite as wrongheaded, naive and downright weird as this one from UC Irvine professor Richard L. Hasen, which criticizes the likely presidential nominee for advocating that more people, regardless of their politics, be allowed to vote.” [NOTE: Mr. Isquith’s name has been corrected here and below. I don’t agree with his article but the least I can do is get his name right!]

Ed Kilgore at the Washington Monthly: “So we’re left with the thought that Democratic advocates for election reform who are in the political arena at the highest level should either shut up about it until such time as Republicans decide to change their minds for their own reasons, or maybe talk about it quietly and with no hint that advocates might be willing to make it a partisan issue! Talk about a blind alley. Interestingly enough, Hasen is indicating he’s rethinking his position based on the negative reaction he received for his Slate piece from people with whom he normally agrees. That’s a good idea.”

Rick’s second post led me to read those two pieces – and having done so, I have two things I disagree with and one that I think is simply wrong.

My major disagreement with the two critiques is the apparent assumption that the outcome of next year’s presidential election will matter in the ongoing fights over election policy.

First of all, the federal government has little if any influence over state and election laws; while renewal/revision of the Voting Rights Act in the wake of the Shelby County case would certainly re-establish Washington’s limited presence, the truth of the matter is that registration and voting are still almost exclusively the province of state and local governments. The next President (whoever s/he may be) and the 115th Congress will almost certainly be a constant source of debate over these issues, but experience suggests progress and impact will be minimal if any. It will also depend heavily on the outcome of state elections which may or may not be affected by what happens in the presidential campaign.

Second, even if the federal government could make those kinds of changes (which I highly doubt), it’s extremely unlikely that Secretary Clinton, if she does enter the White House in January 2017, is going to have the kind of Congressional majorities necessary to make good on the changes she suggests. If she doesn’t, you can bet that the GOP opposition will be hard-pressed to concede on election policy given the sharpness of her critiques.

That said, I readily admit that reasonable people can and do disagree about the role campaigns (and campaign rhetoric) play in the policy realm. I have said time and again on this blog that I am an election geek, not a political junkie, and so it isn’t surprising that I would favor quiet bipartisan progress over aggressive partisan rhetoric. But I can see why people who favor a more partisan tack would approve of that approach – and we will just have to agree to disagree.

But there was one other component of both the Salon and Washington Monthly pieces that I think is so wrong it led me to yell at my computer screen.

Salon:

Hasen tries to prove there’s a relevant bloc of moderate Republicans in state governments by citing a report that came out of a presidential commission. If you know much about presidential commissions — which are often established in order to stall for time until the media stops paying attention — you know that this is exceedingly weak tea. It’s weaker still once you know that the moderate Republican on the commission was an elite lawyer who served on the Mitt Romney campaign.

Washington Monthly:

Hasen mentions the bipartisan “Lines Commission” appointed by President Obama and its worthy recommendations. But the very reason so many people think HRC is taking a stronger position than Obama on this subject is that the “Lines Commission” report vanished without a single trace.

[emphasis in both passages is mine]

With all due respect to Mssrs. Isquith and Kilgore, dismissing the Presidential Commission on Election Administration as “weak tea” that “vanished without a single trace” does unnecessary violence to the facts in service of an otherwise valid opinion.

1. The Salon piece seems to suggest the PCEA is invalid because of the involvement of prominent GOP lawyer Ben Ginsberg – but it completely overlooks (or doesn’t tell readers) that the other co-chair was prominent Democratic lawyer Bob Bauer AND that their leadership was designed to bring both parties to the table;

2. Washington Monthly’s characterization of PCEA as the “Lines Commission” (which a quick Google search suggests first appeared in the New Yorker in January 2014 and then not again until this week’s column) completely misses the boat on the purpose of the Commission – while its genesis was the long lines during the 2012 elections, its report (and a year before that, its charge in the White House executive order) was much more far-ranging than just how long people waited to vote;

3. Moreover, the record already shows that the PCEA neither stalled for time nor vanished without a trace – indeed, as we’ve seen across the nation, the Commission’s full-throated bipartisan endorsement of online voter registration has been cited by both parties in 2014 and 2015, with the result that a majority of states now either have or are implementing OVR – a huge change from the status quo ante PCEA.

The bottom line? The PCEA worked – not by deflecting attention, stalling for time or serving as a cover for someone’s partisan agenda. It worked because elections are already better across America because of the Commission’s report and findings – and the continued work of Commissioners long after their formal service expired.

In short, if you think Rick Hasen and I are wrong about our frustration with a partisan tack on election reform, that’s fine – political junkies and election geeks have different areas of emphasis (or em-FA-sis, as my grandmother liked to say) and we’ll have to disagree. There are lots of things to dislike about the current state of election policy and we can all hope that things will improve, whether through political change or bipartisan grunt work.

But you’re not entitled to your own facts – the PCEA was and is a huge success, and suggesting otherwise in the face of substantial evidence to the contrary is just silly. Indeed, I’d be willing to bet that the PCEA has a longer and more lasting impact on election policy than any speech by any presidential candidate during the 2016 cycle.

And while the politics-driven silly season in election policy may have just begun – a little earlier this time than most – it doesn’t erase the fact that it’s possible to make progress outside of the partisan process.

You do you, political people. We election geeks will still be here getting it done.