Tuesday, September 2, 2014

Larry Lessig and the limits of progressive reasoning



Humans have evolved in a myriad of ways since first bursting on the scene 200,000 years ago. Genetic adaptations enabled the conquering of innumerable hardships and eventual domination of the earth’s resources. But the cloistered life of first-world progressives has dulled not only their instinct for survival but their ability to persuasively advocate.

For all their self-described cognitive ability, progressive argument has grown increasingly listless. Perhaps decisive 20th Century public policy victories stifled their ambition. Maybe the security of a sympathetic media dulled their advocacy skills. Whatever the reason, the intellectual firepower that convinced the nation to implement the income tax, elect Senators through popular will, ban booze, cartelize the economy, and unleash an overbearing administrative state now substitutes “commonsense” platitudes for argument.  

Campaign finance reformer Larry Lessig is an exemplar of this paradigm.

Mr. Lessig, through his Mayday PAC (the Super PAC to end all Super PACs), is on a quixotic crusade to end corruptible government through changes in the federal campaign finance system. Lessig asserts eliminating the influence of big money “funders” will produce clean, citizen-driven government. Only then can the peoples’ work of fixing global warming, neutering Wall Street, and a panoply of other progressive policy prescriptions be implemented.

But Mr. Lessig’s argument for why campaign finance reform is vital to lowering the earth’s temperature a few degrees for future generations falls prey to a common trio of strategic banalities masquerading as argument.

In no particular order:

1.    Always mask solutions as apolitical commonsense. Progressive wunderkind Ezra Klien is a leading purveyor of this approach. Klein launched his fact-challenged website with an ostensible ‘pox on both houses’ essay, but then espoused examples of only one side’s intransigence.

Mayday PAC’s strained attempts at bipartisanship has annoyed his near-homogeneously progressive supporters and forced him to redo his plan. Lessig initially stated the PAC would compete in “five House districts,” then jumped into the New Hampshire Senate race—a naked attempt to damageScott Brown who rebuked the “People’s Pledge.” He also envisioned Mayday PAC as closer in tight races where victories would upend conventional wisdom. But lackluster interest from major players has forced him to support an entrenched incumbent and others that seem more eager for his money than his issue.

2.    When reality blows up your theory, coopt the result like it was yours all along. This subterfuge is most transparent in the “global warming” debate. Alarmists explain nearly two decades of theory-contradicting data as a “pause.” Harsh winters and record low temperatures forced a rebranding to ‘global weirding,’ or climate change, and currently climate disruption. Now any weather event is the result of erstwhile global warming.

Lessig has his own hot air issues. Dave Brat’s Virginia primary victory should have caused Lessig some concern. Democracy produced a result Lessig posits is impossible. Big funders and special interests had no influence; the incumbent had a 26-1 cash advantage. The ‘green primary’—the race for large financial support from big funders—played no role. This race may have had some unique circumstances but it still should have provided Lessig his own “pause.”  Instead, he embraced Brat’s victory. The process is corrupted even when it isn’t! It may be freezing out but what about our carbon footprint.

3.    No argument is complete without gratuitous race baiting. Reminders of past scurrilous racial practices always serve progressives with a moral crutch to mask argument deficiencies. Tea party activists have become favorite targets of this tactic. Lessig contributes with his allusion to the “white primary,” a series of Supreme Court cases arising from Southern states in the 1930s and 1940s. These cases involved the degree political party activity constituted ‘state action’ and thus fell under the aegis of the 14th amendment. There is no such issue in funding candidates—Lessig’s “green primary”—is a private and constitutional endeavor as he readily admits. But why pass up a chance to vilify segregation-era Southerners?

Mr. Lessig forecasts his exploits this cycle as a primer for an expansive 2016 program. His success may depend on his ability to reason beyond well-worn argument strategies, which only sustain the progressive echo chamber.

Friday, August 29, 2014

Part 2: Early Voting Regret a True Threat to Informed Elections

In spite of a U.S. District Court ruling in Ohio this summer expanding early voting by three days, the Columbus Dispatch’s analysis shows that longer early voting periods do not result in a higher overall election turnout.

In February however, Independent Senator Angus King of Maine, who caucuses with Democrats, said he believes that early voting creates the issue of early voting regret due to poor information access.

At a Senate Rules Committee hearing in February, he told the story of how there was, “a situation in a Maine election recently where we had very early voting. . . . [I]t was a month or more before the election. The dynamics of the election changed in the last several weeks. And we actually had people going into their town offices trying to retrieve their early vote, to change it because of developments in the election.”

King went on to say, “I do think that there's a legitimate issue about how far in advance. Because elections do tend to sometimes come into focus in the last several weeks. And we actually had that experience. I knew people that went to their town office and said, ‘How can I get my vote back? I want to change it,’ and they couldn't.” Senator King then asked the witnesses at the hearing, “[h]ow widespread is it? Is it a national problem or is it extremely localized?”

The truth is, early voting regret is not limited to small town mayoral races, but it extends to presidential elections. As determined by USA Today, Florida voters regretted casting their early ballots in the 2012 Republican primary before seeing the results from other state primaries and watching the candidate debates.

The first presidential debate in the 2012 election occurred on October 3. In post-debate analysis, MSNBC’s Chris Mathews said that, “[Obama] was enduring the debate rather than fighting it. What was Romney doing? He was winning. If he has five more of these nights, forget it.” Joe Scarborough, also of MSNBC, said the debate, “has been a real Emperor has no clothes moment. . . . ”

The key swing states of Ohio and Florida both began early voting on October 2, 2012 before that first important presidential debate. In an op-ed by the St. Petersburg Times, the paper warns its readers about early voting regret saying, “voters who choose to vote early, do so at their own risk. If candidates are going to pull any dirty tricks in a campaign, they often do so in the last couple of weeks before Election Day. No doubt, there are voters who have cast an early ballot and wound up wishing they could get that vote back.” Undoubtedly, the premature early voting period led to voter regret after the debate.

It is difficult to deny the influence of Presidential debates. During the October 6, 1976 debate, President Ford sealed his fate with his notable gaffe about the Soviet Union. Similarly, in October 1980, Ronald Reagan asked the famous question, “Are you better off now than you were four years ago?” during his debate with Carter. These late-breaking debate highlights can sway even resolved voters.

A study published by the Boston University Political Science Department analyzed the 2012 Presidential race in Colorado, concluding that “instant gratification” mobilizes voters, which impacts a broad range of elections. The study found that, “the presidential campaign visits to swing states . . . were often timed to coincide with the start of the early voting period in order to generate news and excitement so as to inspire the casting of early ballots.”

There is also scholarly support for this premise. An article published in the Election Law Journal finds that early voters in the 2008 California presidential primary election, “did not fully incorporate information about candidate withdrawals and momentum,” and “presumably failed to incorporate other potentially vote relevant pieces of late information.” The article concluded that, “this suggests that convenience voting could have important effects on general election outcomes,” and that it, “may become grounds for individuals to question the legitimacy of an election.”  

Senator King’s concerns are valid. Voter regret is real, and it is a national problem. There are strong arguments that the early voting period should be shortened or eliminated altogether. As in the case of Ohio and Florida, early voters in key swing states cast ballots in the 2012 election without being fully informed. Elections often come to a head right before the election, and these examples show that early voting can cause a distorted result.
This post was written by Phil Demarest.                                                                                                                            

Thursday, August 28, 2014

Part 1: Stop Increasing the Burdens on Local Election Officials

On a non-partisan basis, election officials are angry for the increasing burdens that are being placed on them.  Typical was the reaction yesterday from local election officials in Virginia:  

Election officials’ complaint is familiar. “We do more and more with less,” said VRAV [Voter Registrars Association of Virginia] President Lisa Wooten. “I would hate to see a terrible election happen to any of us.”

Nationwide Democrats have not only opposed funding the needs of election officials  but instead have advocated expensive and burdensome ideas such as increasing early voting which does nothing to increase turnout (more on that tomorrow).  As RNLA wrote in its response to the Presidential Commission on Election Administration (emphasis added):

If nothing else, the post-mortem of the 2012 General Election revealed the need to focus on the basics of Election Day administration. As the PCEA pointed out repeatedly, the long-lines were typically a result of management problems which can be solved with proper planning and resource allocation and upgrades to our voter registration system. Anything that distracts from the main focus of absentee voting for those who need it, the close of registration books, and the monumental task of preparing for Election Day is simply that, a distraction. Local election officials have finite resources and are already stressed to the breaking point with juggling poll worker training, press inquiries, programming and testing voting equipment, and the other planning that needs to take place on the eve of an election. Being required to administer a robust early voting program is simply going to draw resources and attention away from those preparations.

The time has come to focus on helping election officials and to make their jobs easier.  On a bipartisan basis election officials would agree.  

Wednesday, August 27, 2014

ICYMI: Sotomayor’s Politicization of Justice and Judging for Press Praise

In an interview with National Law Journal, Justice Ruth Bader Ginsburg responded to a question in the following damming way about Justice Sotomayor.

NLJ: As the senior justice in dissent, you assigned to Justice Sotomayor the dissent in the court’s decision upholding Michigan’s constitutional amendment prohibiting the consideration of race in higher education. You and she were the only dissenters. She had joined the 7-1 decision two terms ago in the University of Texas case where race was considered as a factor in the admissions policy. The court sent that case back to the lower court to apply a stricter type of strict scrutiny. Why did you assign the Michigan dissent to Justice Sotomayor?

GINSBURG: She cared deeply about the issue. She might have been distressed about some of the reports in the Fisher [ v. University of Texas] case where she went along with the court. So if anybody had doubts about her views on affirmative action she wanted to quell them, which she certainly did…

As Professor Josh Blackman put it:

Oh my. This paints Justice Sotomayor in such a negative, damaging, and weak light.
First, what does it mean that she “went along with the court.” She joined the majority opinion. That’s a vote, not passive acquiescence. Granted the opinion was narrow, but Sotomayor could have dissented or concurred if she wanted too. RBG dissented. But Sotomayor didn’t. Perhaps the Justices wanted to build consensus for a narrow opinion. But that’s a vote! Why would Ginsburg characterize her in this manner?

. . . Second, if true, it is scary that she is so responsive to press reports, that she wants to write a vigorous dissent to set them right. Justice Scalia and Thomas go out of their way to say they don’t read press accounts of the Court. They are lambasted for being out of touch. But that’s the point. They want to be insulated. Is Sotomayor that fragile and thin-skinned that she feels compelled to write an opinion based on what the media says. I would hope that a Justice would have more fortitude than to be so easily impacted by the press. She shouldn’t have to “quell” “doubts” of the chattering class.  And here, the coverage was mild. Compared that to the full court press on the Chief in NFIB!
But you know what? It worked. Attorney General Holder, with the backing of the White House, spoke glowingly of Sotomayor’s dissent. It was the talk of the town in D.C. And the press now knows they can impact a Justice. It’s one thing for us to speculate about it. But now the Justices confirmed it.


How strange that Sotomayor, in a betrayal of the ethic of judicial independence, should be so concerned about re-positioning herself with those who were disappointed by her Fisher vote. How telling that Ginsburg would eagerly accommodate her—and not feel any embarrassment at revealing the fact.

Relatedly: A D.C. lawyer tells me that he was jarred to hear Sotomayor, in a private conversation, refer to lefty Hispanic groups as “my [i.e., Sotomayor’s] constituents.” A more blatantly political view of the judicial role is difficult to imagine.


Tuesday, August 26, 2014

Suspected Double-Voting Referred to Prosecutors in Virginia


Local election officials in Fairfax County, Virginia have referred seventeen cases of suspected double-voting to the Fairfax County Commonwealth's Attorney. These individuals are suspected of having voted in both Maryland and in Fairfax County, Virginia in the 2012 General Election. Some individuals are suspected of having double-voted in Maryland and Virginia in multiple elections. Click here for the press release from the Fairfax County Electoral Board.

This incident underscores the importance that states share voter registration data on a regular basis. Programs RNLA have endorsed like ERIC and Crosscheck can help both identity and prevent illegal double-voting.  

However, sharing the data is useless if states don't act on it after receiving it. It is essential that officials take decisive action to remove these voters from the rolls once they receive the data from other states. Secondly, it’s important they refer suspected instances of voter fraud to prosecutors. Unfortunately Democrats and their allied liberal groups such as Project Vote and the Brennan Center have repeatedly worked to prevent officials from taking action based on concerns that voters will be mistakenly removed from the voter rolls. They ignore the fact that provisional ballots and other remedial measures can fix any potential mistakes made by officials. Of course, we all know there is no way to retrieve a fraudulently cast ballot by a voter that officials should have removed but did not out of fear that the Democrats would cry "voter suppression". 

There is little that can be done to stop someone from casting ballots in multiple states without states sharing this data and acting on it. It is particularly critical in areas with highly transient populations and in election jurisdictions that border other states. Fairfax County is both highly transient and shares a border with Maryland. It would be relatively easy for a voter to vote in-person in both a Virginia and Maryland polling in the same day, especially since Maryland has few election integrity protections such as voter ID. Based on the news from the Fairfax County Electoral Board, it seems like that very well may have been happening. 


Monday, August 25, 2014

Reasonable Democrats are Tiring of Left-Wing Democrat Voter Fraud Antics

Recently, Obama’s Presidential Commission on Election Administration came out in favor of programs such as the Electronic Registration Information Center, or ERIC to help fight vote fraud and improve registration.  While the commission was co-chaired by Obama’s own lawyer, Bob Bauer, many Democrats and liberals in the election field have fought implementation of ERIC despite its wide bipartisan support. 

Examples of this are one of the Democrats nominee for the Election Assistance Commission, Myrna Perez, and another is the current California Secretary of State Debra Bowen.  Bowen’s views are so extreme that even the left-leaning Pew Charitable Trusts is attacking her:

[ERIC’s] goal is to identify voters who have moved between states, and ensure they are re-registered quickly.  Pew, Becker said later, has invited Bowen's office to six Pew-sponsored meetings since January 2011 to discuss ways to improve elections, including ERIC. Pew received no response to most of the invitations, including for a meeting later this month in San Francisco, he said.

"Not having California being part of a really important data exchange...hurts the other states and I think it hurts California, too," Judd Choate, Colorado's director of elections and ERIC's chairman, testified.

The leading California Democrat to replace Bowen who is term-limited, has also refused to support ERIC.  In the very blue state of California, most voters have had enough of these efforts to promote vote fraud and hurt ALL legal voters.  It is part of the reason that Republican Nominee for Secretary of State Pete Peterson is leading in the polls

The views of far left Democrats in the election field and their allies such as the Brennan Center are too extreme for even Democrat voters and President Obama’s own lawyer.  Hopefully, victories by Republicans in states like California will serve to wake up national mainstream Democrats to stop nominating and funding pro-vote fraud candidates and groups.  

Friday, August 22, 2014

More Proof of the Need for Voter ID

To hear the vote fraud deniers like Justin Levitt and Al Sharpton talk Voter ID does nothing to stop vote fraud because it only stops impersonation.  In other words, someone pretending to be you or someone else they are not.  Maybe in their vain worlds that is their biggest concern: someone trying to be them.  The reality is Voter ID does much more than that.

Take the story yesterday that detailed 14,646 duplicate registrations in just one county in Northern Virginia (Fairfax County) and Maryland.  The election official says there is no way they can sort through all the double registrations before the November election and there are serious questions whether election officials can do anything other than put these voters on the “inactive” roles. 

This allows unscrupulous party operatives (and there are many party operatives in the metro DC area) and other political activists to vote in the state of their choice in different elections.  We are not talking double-voting either, rather more of an "a la carte" voting depending on the election.  For example, in the very blue or Democrat state of Maryland you could vote in the Democrat primary and then for the General Election vote in the purple or toss up state of Virginia.  Furthermore, Virginia has off year elections (2013 and 2015) when there are no elections in Maryland. 

While clean election rolls would also stop this, it should be remembered that the law firm of Presidential Commission on Election Administration (PCEA) Co-Chair Democrat Bob Bauer filed in Virginia what a judge called a groundless suit to stop efforts by Virginia election officials to clean up the rolls.  This baseless partisan effort, while typical of Democrats, even runs afoul of the Bauer-led PCEA’s recommendations. 

Which is why Voter ID is part of the solution.  Everyone should be allowed to vote but only where they live.  Thus Voter ID would prevent the Maryland residents from driving 30 minutes and voting in Fairfax County and vice-versa.  Since Virginia law does not allow for a Maryland Driver's License for acceptable ID, these voters would be deterred from voting in Virginia. Voter ID does not disenfranchise anyone and actually prevents the disenfranchisement of legal voters. 

But Sharpton, Levitt and the Democrats who filed the groundless suit in Virginia will have none of that.  And unfortunately it effects elections and not just their vanity.