ted 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 disintereste