Topic: Law and Civil Liberties

Scant Evidence? That’s Voter Fraud Calling

One of the more clever country song titles I ever heard was If the Phone Don’t Ring, You’ll Know It’s Me.

That’s something like the predicament of searchers after the menace of voter fraud, who can’t seem to find much of it. The New York Times today reports that “scant evidence” exists of a significant problem.

Voter fraud is the idea that individuals might vote multiple times, in multiple jurisdictions, or despite not being qualified. This is distinct from election fraud, which is corruption of broader voting or vote-counting processes. While voter fraud (and/or voter error) certainly happens, it is apparently on a trivial scale. It probably has not changed any election results, and probably will not do so if ordinary protective measures are maintained.

This is important because voter fraud has been used as an argument for subjecting our nation’s citizens to a national ID. The Carter-Baker Commission found little evidence of voter fraud, but went ahead and called for adopting REAL ID as a voter identification card. One of the Commission’s members apparently retreated from that conclusion, having learned more about REAL ID.

For proponents of a national ID, if the phone’s not ringing, that’s voter fraud calling.

Response to Tom Mann on Campaign Finance Reform

Tom Mann has responded to earlier criticisms by Bob Bauer and me of an op-ed by Norman Ornstein and Anthony Corrado. Bob responds on our behalf here. Bob has done well as usual; I respond here on my own behalf.

Mann argues that the Bipartisan Campaign Reform Act (BCRA) did not devastate the political parties. But I did not argue that it had devastated the parties. Tom concedes my original point: earlier trends suggest the parties have fewer resources in 2006 than they would have had without BCRA. I argued that this shortfall for the parties cost the Democrats 15 to 20 seats in 2006 since they were not able to fully exploit the national shift in public mood. Tom says they had enough money to contest the races. My claim about the effects on the party came from Rahm Emanuel and other party leaders. Here’s evidence from the New York Times [$$$] quoted in an earlier post:

Stan Greenberg, the Democratic pollster, …said that Republicans held 14 seats by a single percentage point and that a small investment by [Howard] Dean [head of the Democratic National Committee] could have put Democrats into a commanding position for the rest of the decade…” There was a missed opportunity here,” he said. “I’ve sat down with Republican pollsters to discuss this race: They believe we left 10 to 20 seats on the table.”

[…]

Mr. Emanuel said … : “More resources brings more seats into play. Full stop.”

Emanuel’s statement supports my claim. Tom himself cites the testimony of Terry McAuliffe, a Democratic party leader, in his post on another matter. If McAuliffe counts, so does Emanuel.

Here are some other arguments from Tom Mann (in italics) and my replies:

BCRA did not ban any political ads; it stipulated that electioneering communications may not be funded by corporations and unions.

Well, if an “electioneering communication” is a type of political ad and a law stipulates that corporations and unions may not fund them, then the law has banned the funding (and hence, the existence) of a certain kind of political ad. Part of the struggle over BCRA was whether these ads were “issue ads” (and hence protected by the First Amendment) or like contributions to campaigns (and hence, illegal because or earlier bans on contributions by labor unions and corporations). BCRA defined the ads as contributions by calling them “electioneering communications.” The Supreme Court acquiesced in that definition. The ads have disappeared from campaigns. The regulation of money does appear to eliminate speech. Sen. McCain himself thought disclosure of the supporters of the advertising would be enough to stop the ads (i.e. the political speech). Or so he said on the floor of the Senate.

There is another part of this story. These issue ads were irritating and threatening vulnerable members of Congress. In response, Congress declared funding of the ads illegal. That strikes me as striking evidence that campaign finance regulation protects its authors, i.e. members of Congress.

The amount of political advertising in 2006 supports the view that BCRA did not constrain vibrant free speech.

This is an interesting confusion. If we define vibrant free speech as “the amount of political advertising in 2006,” then indeed BCRA did not constrain vibrant free speech. But if BCRA constrained spending on political speech and other electoral activities, then it did restrict free speech, even if we had lots of speech otherwise. “Vibrant” here means something like “enough” political speech. Thus BCRA may have restricted some speech, but the society had enough for its purposes.

There is a parallel here to an argument made some years ago by the law professor Owen Fiss. He argued that the free speech of some disfavored speakers might be restricted to foster a “rich public debate,” which he took to be the goal of the First Amendment. Hence, in Fiss’s view, the First Amendment empowered government to suppress speech for the higher goal of a “rich public debate.”

Tom Mann is not explicitly arguing for suppression of speech. But he is implicitly reading the First Amendment as expressing a social goal rather than a restraint on government. Once we have “enough speech,” we should not be especially worried about restrictions on some speech.

This point supports Tom’s general observation that arguments about campaign finance are dependent on political theory. As I argue in The Fallacy of Campaign Finance Reform, progressives have come to see the First Amendment as empowering government to regulate and suppress speech in pursuit of larger social goals. But the First Amendment simply restricts the government’s power over speech. It does not say the government may limit freedom of speech if we have enough speech during an election, or to assure that we have the right kind of speech for a “rich public debate.” It just restrains the government. (In the interest of accuracy, I should point out that not all of Tom Mann’s allies mentioned in his post are progressives; Michael Malbin is not for one).

Party soft money was not diverted to 527s. The research on this by the Campaign Finance Institute, reported in The Election After Reform, is crystal clear.

Mann may be correct here. If so, the parties were deprived of huge sums in 2006.

Samples judges BCRA by the arguments made in Congress by some of its supporters. I don’t doubt that some wanted to reduce the overall amount of money in campaigns and eliminate negative advertising. But those were not built into the design of the law.

This implies that the Senators who explicated the law on the floor of the Senate and later voted for BCRA did not understand its purposes or how it would work. We should wonder about the validity of a law if the people who enacted it did not understand its goals or its design. But, then again, the goals many senators assigned to BCRA were not constitutional. (You can read about the many purposes of BCRA in the Introduction to The Fallacy of Campaign Finance Reform).

Tom Mann finishes up by arguing that my “libertarian framework” leads me to ignore reality. (Similarly, Ornstein and Corrado branded critics of BCRA as “ideologues” in their original Washington Post piece). Here’s what Tom is doing rhetorically: Libertarianism is a kind of religion that believes things without proof. We – that is, Tom Mann and company – are pragmatic and moderate, trying to grapple with complexity in pursuit of the common good. So who are you going to believe? The simple-minded fundamentalist or the scientific centrists?

This is a neat rhetorical gambit often deployed by self-described moderates. But there are several ironies here.

First, Tom’s allies in the “reform community” (though not Tom himself, or any of the people he mentions) are not especially scientifically-minded. For example, I have been told that such self-described reformers have bitterly criticized political scientists for not finding evidence of corruption caused by campaign contributions.

Second, The Fallacy of Campaign Finance Reform is filled with attention to empirical work and some original analysis of data. I do not simply assert that campaign finance law protects incumbents, I discuss data that is consistent with that hypothesis. I also mention data that is not consistent with that hypothesis (for the latter, see pages 231-2). I also deal with empirical work that suggests contributions do influence congressional behavior (see pages 98-100). I do discuss the political theories behind the campaign finance struggle. And yes, you can get all that for $22.04 plus shipping!

Note also that I wrote above, “Mann may be correct here.” But read the book and then decide for yourself whether Tom is correct about my attitude toward empirical evidence.

Third, policymaking about campaign finance itself has not been anything like the empirically-minded model Tom sets out. The basic federal campaign finance law was passed in 1974 (and amended a bit shortly thereafter). Its regulations were justified as a means to prevent corruption or the appearance of corruption. Over the next three decades studies consistently cast doubt on the influence of contributions on policymaking. Other studies indicated that campaign finance rules had little to do with trust in government. Were the laws changed in response to these studies? For example, were contribution limits raised to keep up with inflation or even increased? In fact, the limits were left at their 1974 levels, thereby becoming ever smaller through the effects of inflation. The appearance of corruption rationale, for its part, remains a frequently-cited justification for more campaign finance regulations. To be sure, studies have been used to justify more regulation of money in politics. Studies that suggest liberalization, however, are ignored by judges and legislators. In science, that’s called selection bias. In politics, it’s called business as usual.

Duke University Students Are “Innocent”

The North Carolina Attorney General has just announced that the criminal charges against the Duke University lacrosse players have been dropped because the young men are “innocent.”

Much will be said about Michael Nifong, the original prosecutor who is now facing an ethics investigation. However, as I’ve said before, I think it’s a mistake to think that this case was about one rogue prosecutor. The problems are more systemic than many wish to acknowledge.

Enemy of the People … ?

Below, Sigrid posts Walter Murphy’s much-blogged about claim that he has been watch-listed because of a speech he gave criticizing Bush’s constitutional record. Those interested in the story should also read the skeptical questions raised by Wired’s Ryan Singel, a Watch List critic, about Murphy’s story, which are available here:

Woe be it for this blog to defend the country’s foolish watchlist system, but after having spent more than four years reporting on watchlists, filing Freedom of Information Act requests, and talking with persons flagged by the lists, I have never seen a single case of a person being put on the list for activities protected by the First Amendment. …

I’m not even certain that in this case Murphy’s name matched or was similar to a name on the list - which is what has snagged nearly every David Nelson in the country and what got Senator Ted Kennedy a dose of handheld wanding.

In this case, I would guess that Murphy was singled out randomly. He himself says he wasn’t flagged on the way back, which he almost certainly would have been if he were on the ‘selectee’ list. (The ‘selectee’ list directs airlines to single out that person for extra screening, while a related list, the ‘no-fly’ list directs airlines to keep a person off a plane.)

I’m open to any evidence that the government has watchlisted American citizens for exercising their Constitutional rights, but I’ve never seen it.

The left wants to believe it is living in some version of Orwell’s 1984. … Around these parts, we prefer to see the world through a Kafka and Gilliam kaleidescope.

Enemy of the People!

Prof. Walter F. Murphy’s Letter, originally published on Mark Graber’s blog, 3/7/07:

On 1 March 07, I was scheduled to fly on American Airlines to Newark, NJ, to attend an academic conference at Princeton University, designed to focus on my latest scholarly book, Constitutional Democracy, published by Johns Hopkins University Press this past Thanksgiving.

When I tried to use the curb-side check in at the Sunport, I was denied a boarding pass because I was on the Terrorist Watch list. I was instructed to go inside and talk to a clerk. At this point, I should note that I am not only the McCormick Professor of Jurisprudence (emeritus) but also a retired Marine colonel. I fought in the Korean War as a young lieutenant, was wounded, and decorated for heroism. I remained a professional soldier for more than five years and then accepted a commission as a reserve office, serving for an additional 19 years.

I presented my credentials from the Marine Corps to a very polite clerk for American Airlines. One of the two people to whom I talked asked a question and offered a frightening comment: “Have you been in any peace marches? We ban a lot of people from flying because of that.” I explained that I had not so marched but had, in September, 2006, given a lecture at Princeton, televised and put on the Web, highly critical of George Bush for his many violations of the Constitution. “That’ll do it,” the man said.

After carefully examining my credentials, the clerk asked if he could take them to TSA officials. I agreed. He returned about ten minutes later and said I could have a boarding pass, but added: “I must warn you, they’re going to ransack your luggage.” On my return flight, I had no problem with obtaining a boarding pass, but my luggage was “lost.” Airlines do lose a lot of luggage and this “loss” could have been a mere coincidence. In light of previous events, however, I’m a tad skeptical.

I confess to having been furious that any American citizen would be singled out for governmental harassment because he or she criticized any elected official, Democrat or Republican. That harassment is, in and of itself, a flagrant violation not only of the First Amendment but also of our entire scheme of constitutional government. This effort to punish a critic states my lecture’s argument far more eloquently and forcefully than I ever could. Further, that an administration headed by two men who had “had other priorities” than to risk their own lives when their turn to fight for their country came up, should brand as a threat to the United States a person who did not run away but stood up and fought for his country and was wounded in battle, goes beyond the outrageous. Although less lethal, it is of the same evil ilk as punishing Ambassador Joseph Wilson for criticizing Bush’s false claims by “outing” his wife, Valerie Plaime, thereby putting at risk her life as well as the lives of many people with whom she had had contact as an agent of the CIA. …

I have a personal stake here, but so do all Americans who take their political system seriously. Thus I hope you and your colleagues will take some positive action to bring the Administration’s conduct to the attention of a far larger, and more influential, audience than I could hope to reach.

Politics and the English Language

Over at the Corner, Ramesh Ponnuru notes that a post of his,  reporting from a recent Club for Growth summit, occasioned much outrage on the left side of the blogosphere (as in this entry from Glenn Greenwald, who’s my kind of liberaltarian).  Ponnuru explains:

What happened is that Ed Crane, the head of the libertarian Cato Institute, asked Romney and Giuliani on separate occasions a polemically-phrased question about the president’s authority to designate detainees as enemy combatants—or, as Crane put it, arrest citizens without review.

Giuliani said he’d only want to use the power ”infrequently,” where Romney said he’d like to hear from some smart lawyers before deciding whether to eviscerate what Justice Scalia has, somewhat “polemically,” called “The very core of liberty secured by our Anglo-Saxon system of separated powers.”

I believe that the basis for Ed’s question was the Jose Padilla case, in which the Bush administration asserted the right to seize an American citizen on American soil and hold him without charges or access to counsel for the duration of the war on terror–in other words, perhaps forever.  (Padilla has since been charged in civilian court, but the administration has never renounced the power it asserted). 

I wasn’t there, so I didn’t hear the exact phrasing of the question, but from the account above, Ponnuru seems to think that asking whether the president should have the power to “arrest citizens without review” is an example of polemical phrasing.   Yet that was the very power asserted in the Padilla case.   You can defend that constitutional theory or oppose it, but the description is neutral and accurate.  In contrast, “designate detainees as enemy combatants” is a euphemistic word-cloud, obscuring what’s really at issue. 

Democrats and Civil Liberties

Back during a blogosphere brouhaha about “libertarian Democrats,” Jesse Walker of Reason offered this advice to Democratic candidates who wanted to attract libertarian votes:

The short answer – and this applies to Republican candidates too – is: (a) Don’t be as bad as the other guy, and (b) Be actively good on at least one important issue.

He went on to urge Democrats to “Be good on the issues where the left is supposed to be good.” Like, you know, peace and civil liberties. And the problem for libertarians who are tired of being yoked to an increasingly less libertarian Republican party is that the Democrats aren’t following this advice. Not only have they seized on their narrow 2006 victory to start pushing for national health insurance, more regulation, public housing, and a budget that implicitly requires a massive tax increase, they have dithered about the war in Iraq and completely ignored real civil liberties reforms. Democrats are far more concerned about the firings of eight U.S. attorneys than about the authority the president claims to arrest American citizens and hold them without access to a lawyer or a judge.

Now two leading lefty pundits have called the Democrats out on these issues. Arianna Huffington wants to know when the Democratic presidential candidates are going to say something about the war on drugs. She’s embarrassed to have to admit that a conservative Republican senator from Alabama, Jeff Sessions, thinks the penalties for crack cocaine use are excessive, while liberal Democrats look the other way.

And John Nichols of the Nation thinks Democratic candidates ought to be able to endorse a package of constitutional reforms being supported by the chairman of the American Conservative Union. The American Freedom Agenda, endorsed by several prominent conservatives, envisions such reforms as

  • Restore habeas corpus to prevent the illegal imprisonment of American citizens;
  • Prohibit torture and extraordinary rendition;
  • Prohibit unconstitutional wiretaps, email and mail openings via warrantless searches.

Nichols thinks Hillary Clinton, Barack Obama and John Edwards don’t endorse such goals because they’re cautious politicians. Maybe. Or maybe it’s because they want to be president, and they want to exercise just as much power as President Bush exercises.

So far it’s hard to find the issue(s) on which Democrats are “actively good.” Maybe their 2008 strategy for attracting moderates, centrists, and libertarian-leaning voters is to hope the Republicans keep on spending, centralizing, preaching, incarcerating, and struggling in Iraq.