What Now?

Dear Alan,

With news breaking every day, this is the first chance we’ve had to talk about longer-term issues of reform. I will resist commenting on your opening remarks about the “overwhelming” odds against Gore and the relative partisanship of the players in Florida, except to say that Gore will lose if and only if his arguments are rejected on the merits (as they should be), and that—with the honorable exception of the Palm Beach canvassing board—there isn’t a dime’s worth of difference between the parties in terms of their partisan loyalty.

First, our points of agreement. Punch-card voting must go, and with it the need for manual recounts, chad, dimples, and flaps. I am not techno-savvy enough to know what the best system would be, but I’m confident we can come up with an accurate voting machinery.

The Electoral College should stay, not only for the reasons you mention but also because it discourages fringe parties. I know it is unpopular to say so, but the two-party system is an important ingredient in our stable democratic system. A two-party system tends to produce candidates who attempt to appeal to the middle. That may not be exciting, but moderate politics is better than the politics of the extremes.

I also agree that voting registration needs to be reformed. As you say, the system should be “streamlined” and “simple” so that potential voters are not turned off. But the most urgent need is to make the system more reliable. I think you are misinformed when you say that current registration procedures are “cumbersome and often intimidating.” Today, especially after the federal Motor Voter law, you can register to vote easily, without hassle. It takes less time than using an ATM. The more serious problem is that there are untold thousand of voters on the rolls who have died, moved away, are not citizens, or have multiple registrations. I recently moved from Chicago to Utah, and there was no procedure for removing my name from the Chicago rolls when I started to vote in Utah. For all I know, a phantom “Michael McConnell” is still adding to the vote totals in Bill Daley’s hometown. Moreover, when I voted last month, no one asked to see any identification and no one compared my signature to the official signature on the rolls. It was widely reported that several Wisconsin students voted multiple times in the recent election, just on a lark. One of them said he voted for himself, as a write-in, four times. Most multiple voting is not so benign. When people vote multiple times, or when votes are recorded for dead or departed voters, everyone else’s right to vote has been diluted. This should be stopped.

I also agree with you about televising Supreme Court proceedings. As an occasional Supreme Court advocate, I am always struck by the difference between the arguments inside the courtroom, which are strictly disciplined by law and by the ability of the justices to expose unfounded arguments, and the arguments (often by the same people) at the TV cameras on the courthouse steps. The current setup—coverage by reporters without actual pictures—is a nice compromise, which gives the public needed information without turning the court into a show.

The real reason cameras are excluded, though, is that the justices like being anonymous. They like to be able to go to a restaurant or a shopping mall without being mobbed, recognized, threatened, praised, or importuned. That may sound selfish on their part, but there is a public interest in it, as well. The justices are already a bit too insulated from real life and from the consequences of their decisions. They cannot talk about their decisions with anyone other than their law clerks and each other, and when they appear in public—especially before legal audiences—they are treated like demigods. This is not a good thing. It would be unfortunate if, by turning them into public celebrities, they were forced into even greater isolation.

Our biggest disagreement is about campaign-finance reform. I don’t disagree with your criticism of the present system. It is awful. But you are overly optimistic about solving it. Even assuming that it is constitutional to limit campaign contributions, as well as expenditures by candidates (which would require overruling a number of Supreme Court decisions, including one just this year), it is surely not constitutional to prevent independent individuals and groups from supporting candidates. For example, an editorial endorsement by the New York Times “costs” thousands of dollars and is worth many thousands more. But if “freedom of the press” means anything, it stands for the right of people to publish their opinions about political issues, including the virtues and vices of candidates. Other organizations, such as the Sierra Club and the NRA, have no fewer rights. They, too, can publish their opinions about issues and candidates. This is surely protected by the First Amendment.

But if we limit campaign contributions and campaign expenditures, but do not (because we cannot) limit election-related speech by independent groups, it would only make things worse. Campaign money will not cease to flow. It will just flow into less accountable and less responsible channels. Special interest groups will gain in influence at the expense of parties and candidates.

A good argument can be made that even our existing campaign-finance laws have made matters worse. I am offended by the fact that Patrick Buchanan was given millions of taxpayer dollars merely because Ross Perot got over 5 percent of the vote last time. I was offended in 1996 when, because Bob Dole had to participate in the primary campaign while Bill Clinton was unopposed for renomination, Clinton was able to run TV commercials all summer when it was illegal for Dole to do so. I am offended by the fact that multimillionaires like John Corzine, Mark Dayton, Maria Cantwell, Michael Huffington, and half the Utah congressional delegation are able to spend millions of their own money while opponents who rely on the support of the public are fettered by law. Is it really campaign “reform” to give a structural advantage to rich candidates?

Wouldn’t it be better to scrap existing laws and allow individuals (not corporations or labor unions) to contribute what they wish, subject to immediate and very public disclosure?

Tell me, Alan, what forms of campaign-finance reform would work.

Finally, let me pass on an amazing bit of information, which I picked up from Robin Galiano in the Washington Times. According to Galiano, there is a patron saint of disputed elections, named—believe it or not—St. Chad! It seems Chad was a seventh-century English bishop whose election to be Archbishop of York was disputed. To avoid un-Christian disputation, he withdrew in favor of the other candidate. As they would say on television, I am not making this up.