GUY CHARLES: Good afternoon. And welcome to the Third Harvard
Law School Rappaport Forum. My name is Guy Charles. I'm currently the Edward and
Ellen Schwarzman Professor of Law at Duke Law School. The co-founder of the Center
on Law Race and Politics. Happy to say that in July, I
will be joining the Harvard Law School faculty as the Charles
J. Ogletree Jr. Professor of Law and as a director of the Charles
Hamilton Houston Institute for Race and Justice. I'm delighted to be
with you this afternoon and delighted to be serving as
the moderator for this forum. The HLS Rappaport Forum
was launched last spring to promote full, open,
and vigorous discussion, a respectful clash of ideas
about critical and complicated issues facing our community, our
nation, and indeed our world. It is made possible through a
generous gift of the Rappaport Foundation and builds on the
legacy of the Harvard Law School Forum, which
Jerry Rappaport founded and the wake of the
Second World War to provide aspiring lawyers
with regular opportunities to engage with ideas
and issues that are connected to
the study of law and in a rapidly changing world. So it is my pleasure
this afternoon to acknowledge and to
thank Jerry and Phyllis Rappaport for nearly 75 years of
support for Harvard Law School, for their commitment
to civic discourse, and particularly for
their generosity, which makes this event possible. Today's topic is, should
Congress pass HR1? This is an omnibus
statute that touches a bill, that touches on
questions of voting rights, campaign finance,
electoral redistricting, government ethics. All questions that
have come under renewed and intense scrutiny
after the 2020 elections. Now, in the time
that we have today, we won't be able to cover
all of these questions. But just to give you a
brief overview of this bill, which does a number of things. It recognizes that voting
is a constitutional right. It shifts the burden from
individuals to the government for the right to vote. It provides for automatic
voter registration. It centralizes a number
of different aspects of election administration
and voting practice. So the examples include
provide for online registration in federal elections nationwide. Making it harder for
voters to be registered in more than one state. It standardizes voting practices
by requiring each state to provide online
voter registration. Providing early voting, same day
registration, automatic voter registration, vote by mail. So does a number of important
and different things like providing
funding to the states. And whatever one thinks of the
merits as a policy measure, the bill also raises difficult
constitutional questions, as well as difficult
policy questions. And we're very,
very lucky to have two distinguished panelists to
talk to us about the policy, as well as the constitutional
questions of the bill. Now, before introducing
our speakers, I do want to make two very
quick acknowledgments. First, I would be
remiss if I did not take a second to acknowledge
that this discussion is taking place against the backdrop
of yesterday's verdict on the Chauvin trial. And for some members
of this community questions of democracy
and racial equality are inseparable and
very much linked. So it is important to
acknowledge that fact. Second, I would also
be remiss if not acknowledging how
appropriate it is to have this discussion at Harvard. First, one of
HR1's main sponsors is Representative
John Sarbanes who's a graduate of this law school. Second, Harvard has
become the place for thinking about
[? law and ?] democracy. Most in this
audience are familiar with the tremendous
work of Professor Larry Lessig whose work
in campaign finance and democratic representation
is singularly impactful. Recently, Harvard has lured away
Professor Nick Stephanopoulos, one of the brightest legal
minds in [? law ?] democracy. And even more recently
this law school has announced the first
clinic of its kind in the country, an
election law clinic that will be directed by the
superstar election law litigator Ruth Greenwood. The role that law plays in
furthering democratic freedom and representation is one of
the defining issues of our time, so kudos to John Manning for
assembling such great people to make Harvard the
central place as it should be for thinking
about these issues. Now, I'd like to introduce
our amazing speakers, Benjamin Ginsberg and Wendy Weiser. Ben Ginsberg is a nationally
known political advocate. His clients have included
political parties, political campaigns,
candidates, members of Congress, state legislatures,
governors, corporations trade associations. He represented for the last
six Republican presidential candidates. He has served as
a national council in the Bush-Cheney
presidential campaigns in 2004. And in the 2000 election
cycles played a central role in the 2000 Florida recount. Ben's representations
ranged from across a variety of election law and
regulatory issues. He served as a co-chair of
the bipartisan presidential commission on election
administration. Could not have a better
person to help us think through these questions. His counterpart, Wendy Weiser,
directs the democracy program at the Brennan Center
for Justice at NYU, a nonpartisan think tank and
public interest law center that works to revitalize,
reform, and defend systems of democracy and justice. Her program focuses on
voting rights, elections, money in politics,
ethics, redistricting. She founded and directed
the program's Voting Rights and Elections Project,
directing litigation, research, and advocacy to enhance
political participation, and to prevent voter
disenfranchisement across the country. She's authored a number
of nationally recognized publications and
articles on voting rights reform and election reform,
litigated groundbreaking lawsuits. Again, we're very lucky
to have Wendy and Ben. So I think we can
look forward to a wonderful, lively,
educational, and civil discussion. OK. I'd like to start
first with Wendy, and ask her to make the case
for HR1 as broadly as she can on both the policy, as well
as the constitutional rights question. So Wendy, over to you. What's the case? WENDY WEISER: So thank
you so much, Guy. Thank you, Dean Manning
and the Rappaport Forum. It's such a pleasure
to join you and to talk about this important
piece of legislation. And it's a pleasure
to debate Ben Ginsberg on these critical issues. So the For the
People Act, it aims to markedly improve the
workings of American democracy, to modernize it, to open it
up, to restore public trust. It is coming at a
time of real crisis for our democracy
on multiple fronts. Just last year-- I'll start with voting. We had a remarkably
successful election under the circumstances and
under extremely difficult conditions. Having the highest voter
turnout since 1900, having an election that
the federal government Cybersecurity and
Infrastructure Security agencies deemed the most secure
in American history. And yet a third
of Americans were led to believe the big lie,
that this election was marred, it was stolen, it was
marred by widespread fraud. And this culminated in a
violent attack on our capitol. It led to attempts
to disenfranchise lots of voters,
particularly targeting voters of color,
in a real crisis moment for our democracy. Now, coming out of this
election, across the country, we're seeing a fierce
assault on the right to vote. Legislators are rushing a wave
of new voting restrictions, trying to pass them. We have been tracking this now. And there are more
than 360 bills moving in 47 states that would
roll back access to voting. This would be the most
significant cutback on voting rights since the Jim Crow era. And they are moving fast
through the legislatures. Just yesterday,
Montana passed some of their voting restrictions. The Arizona house voted
out a significant bill rolling back voting
rights there. And the proposals will
disproportionately affect and target voters of
color if they are enacted. And we can talk about this. They would result in large
scale disenfranchisement of eligible voters. And as more and more
of the proponents are admitting, in
many cases that is precisely their purpose. And we're hearing
this quiet part being said out loud more and more. So this is one big threat
facing our democracy on the voting front. And what the For the People
Act aims to do is to-- it would actually stop each
and every one of these voting restrictions in their tracks
by setting a national standard, a baseline set of
voting rules that can't be manipulated,
that everybody can rely on in federal elections. But voting is not
our only crisis. Within a few months,
we're going to start the redistricting
process to draw congressional district lines. And there is a real
risk that we're going to have unchecked state
legislative majorities using this opportunity to gerrymander,
to discriminate, and to deny communities a voice. In a significant way, we
saw a significant increase in extreme partisan and
racial gerrymandering in the last decade. And we are heading
into this decade with fewer legal protections
against those abuses with high incentives
and with lots of legislative bodies in a
position to enact these abuses. And so this is
another crisis that is looming on the horizon
that can impact representation for a decade. This legislation is also-- and for the People Act
would actually address that. It would actually
curb the possibility of partisan gerrymandering and
create fairer redistricting process that will enable
fairer redistricting for all communities,
including communities of color who are often in the
crosshairs of redistricting fights. And the third crisis
I'll just mention is we are now one decade
after Citizens United ushered in a new era of extreme
concentration of spending of money, big money
dominating American politics. We have a role for
big money like we haven't seen in the Gilded Age. This morning's New York Times
reports on a report just issued by the bipartisan
group Issue One, putting some figures on
that concentration of power. And we're finding that since
the Citizens United decision, 12 donors and their spouses-- just 12-- actually
have given $3.4 billion in federal elections. One in every $13 spent. The large donors, the donors
that were over 100,000 or more have outspent in
federal elections the combined spending
of the millions of small donors
in the last couple of presidential elections. So this is another
crisis that is making Americans feel disenfranchised. Their voices don't
matter as much because we know that
politicians listen to and policy follows the
donors as much as if not more than the will of the voters. So these are converging crises. And they have not
been addressed. We have had a stalemate in
Congress for decades now. And we have now a unique
opportunity to address these tripartite-- and actually a
third crisis with the crushing of ethical norms-- crises facing
American democracy. And that's a strength
now of this legislation that we can actually
have an opportunity to address all of them at once. These are the things that
are dampening the voices of millions of Americans. These are the things that
are bringing our democracy to the brink of crisis. And what they would do is set
a national standard across all these dimensions, so that
our electoral system should be same, have some baseline
national standards regardless of where a citizen lives. And all of the
provisions in HR1, and we'll go through
them in detail, are built on successful
policies that have been in place at national,
state, and local levels across the country. Every single one
of them has been honed by election
officials over the years, has been put in place, or has
garnered bipartisan support at the state and local
level, and is widely supported by the American
public regardless of partisan
political persuasion. So here's a real opportunity
to make a difference. So the broad case for
the constitutionality is these are problems that
only Congress can solve. These are abuses going
on at the state level. And in fact, it was the
Constitution's vision that it was precisely
the appropriate role for the federal government
in the elections clause to give Congress the
authority to regulate federal elections in the case
of abuses at the state level. The Congress was given what has
been recognized by the Supreme Court as an extraordinarily
broad power, a power that Justice Scalia
said could be to write an entire
congressional elections code. It's a power that's been used
to justify sweeping election legislation, money in
politics legislation, redistricting
legislation in the past, and it's a power
that is strong enough to encompass all of the
provisions of HR1 and S1. So with that, I'll [? pause. ?] GUY CHARLES: Ben, I'm going
to turn it over to you. As I understand the
case from Wendy, three particular purposes to
promote political participation in the voting rights context,
the move by the states to undermine voting rights,
the case for uniformity and nationalization,
and the camp in the redistricting context,
the importance of uniformity. And in the context
of campaign finance, the role that big money plays-- we're going to leave aside the
ethics questions for a moment-- but the role that
big money plays om minimizing the
voice of the people. And then on the
constitutional question that Congress has
the power broadly under the election
clause to address what one could think of as
the collective action problem. So now, I'll turn
it over to you. What's your response? What are your thoughts? BENJAMIN GINSBERG:
Well, thank you, Guy. And thank you very much for
having me here in the Rappaport Forum and to Dean Manning and
you and the faculty for having us here. It's a pleasure to
be here with Wendy with whom I have
certainly discussed these issues over the
past year to a great deal. And I know that she
and the Brennan Center have well thought out
positions that they advocate for passionately. So I look forward
to this discussion. Guy, I would frame this
up in terms of about three starting points really. The first that really
permeates so much of this is the historic polarization
in the country right now. We are divided as never before. It's true in
election statistics. It's true in attitudes
in communities, and attitudes in families even. And people feel
very passionately about this subject. Wendy's reference to the big lie
as a major contributing factor to it I think is
absolutely correct. But the problem is that the
different poles of the country are not talking to each other
and feel so passionately about their view that they're
denigrating the other side's view and, in fact, often
denigrating the people who hold these views. That is a dangerous place
for the democracy to be. We have to look at HR1
and the voting issues in the states in that context. The second context
is what we've been reading more about than HR1. And that's the voting
bills that Republicans are pushing in the states. A little bit of a
personal disclaimer here. While a lifelong
Republican, I don't agree with many of the things
that the Republican Party is doing now in the voting area. That's certainly true amongst
much of the legislation in the states. And while I don't
agree with that, I think my role here today is to
explain it as best as possible. Because I do think that that's
an important part of being able to solve all these
problems we're talking about. And there are
individual provisions in both the state laws
that are reflected in HR1 that we can talk about. But let me say
what's most upsetting to me about the Republican
actions in the states is that they do seem aimed
at an electoral result, that the emerging demographic
changes in the country make Republicans fear
for the electoral results in the future, and are aimed
at specific groups which Republicans think will not
vote for them in the future. And that is the wrong
reason to pass laws. Results-driven legislation
in this area is always bad. And if there are
political outcomes to make up for either past
or perceived future voting deficiencies, that is
precisely the wrong reason to pass legislation. The third major
point I'd make is that there are 30%, 35%,
40% of the population that don't believe in our
election results. And whether that is attributable
to a big lie or not, that is a real problem. Remember that the
peaceful transfer of power that undergirds
our entire process is really based on the losing
parties accepting the results. And that 30% to 35%
that don't believe in election results, that
thinks our process is fraudulent is a real problem that
has to be addressed. And the position just
can't be denigrated by saying, well, they don't
know what they're talking about. Because that is a
large percentage of people who just don't
believe in an essential strength of our system. And so I think all
those three things need to be taken into
account when discussing HR1 and the state election bills. As for HR1 itself, it is an
800 page bill, more or less. And there are good
provisions in that bill that should be the subject
of bipartisan agreement. But it is a bill that while
it may have started out as reform with all
the best intentions, it has got some problems
because it reads, and there are enough
provisions in it, that those good intentions
got hijacked by the Democrat's wily political
operatives who are trying to put in provisions to gain a
Democratic electoral advantage in the future. I don't want to draw
a false equivalency between the Republican
voting rights bills because they do go towards the
most fundamental of all rights, the right to vote. And what's in HR1,
I put much more in the context of the political
animal generally behaving badly in order to try and
get electoral gain. And here's the reality
of what Republicans see when they look at HR1. Democrats did not meet
their expectations in the past election, in
2020, for winning results. There are states in
the South and West, which because of their
policies on various issues, they can't win. In fact, Democrats
believe they get between 52 and 55 Senate seats. [? They're ?] 50. In the House, instead of
gaining 15 to 20 seats, they lost 13 seats. It's the narrowest
margin since World War II in a House of Representatives. Democrats spent
hundreds of millions of dollars trying to win state
legislative chambers in order to be able to draw their
maps in redistricting. In fact, Democrats failed
to flip any chamber, lost 135 seats overall. And so much of what
in HR1, Republicans see as an attempt to change
the rules of the game because they can't win the game. In other words, if
we were to start declaring the winner
in football games based on the number of
yards gained as opposed to the final score, that
would be the equivalent of a number of provisions. And just to give
you a few examples to tee them up for the more
specific discussions we'll have, I mentioned the Democrats
who tried very, very hard to flip legislative
chambers in 2020 and failed. All of a sudden,
Democrats in Congress are wildly in favor of
redistricting commissions, which would take the
power to draw maps away from state legislatures, and
give them to commissions, which at best have a debatable
track record in terms of coming up with fair maps. I mentioned that
the Democrats have failed to reach their goals
of winning Senate seats. In fact, it's a 50-50
Senate right now. So the Democrat's
solution in HR1 is to change the
makeup of the Senate and to add four Senate seats
from two territories that would lean Democratic,
tilting the rules of the game. Taxpayer funding for
federal campaigns is one of the finance positions
I'm sure we'll talk about. Providing taxpayer
dollars for politicians at this particular time
in our economic history seems to be a strange, but
long held Democratic goal. It concentrates on
small dollar donations. We should talk about the
policies of that just because of the messaging that it takes
to be a successful small dollar fundraiser. And probably not the
intent of the law-- to give $20 million
or so per quarter to some of the loudest voices
against certifying the election results. But based on first quarter
fundraising statistics, it's the Ted Cruzes and the Josh
Hollis in the Marjorie Taylor Greenes, and the
[INAUDIBLE] who would most benefit from that provision. There are provisions to
change the FEC into a far more partisan entity than it is now. We can talk about this
function versus partisanship [? as ?] virtues. [INAUDIBLE] goal. On a constitutional
level, the national rules for federal elections,
the concept of one size fits all will certainly run into
objections from Republicans. Some of the provisions on
providing barriers to issue ads will insulate incumbents from
criticism of their positions on issues. And so I think we
have a lot to talk about in the constitutional
and the policy realm. GUY CHARLES: Great. So let me start with this. I have two initial questions. One for Wendy and one for Ben. And you keep your
answers a bit short, and then we can all
engage with one another. So first for you, Wendy. I thought Ben's point about
the current polarization-- both polarization
and the ideological divide in this country
over the extent of voting and political participation,
or even redistricting or money in politics. And the fact that there may
be a significant percentage of the population who do not
trust our election processes. An omnibus bill like
HR1, For the People Act, will either contribute
to that polarization and deepen it and/or
contribute to the distrust and deepen that. So that's an initial
objection on the basis of the current
political realities and its interaction with
the policy proposal. What is your response? Look, we have two different ways
of thinking about this problem. It's ideological, it's
partisan, and it's polarized. And we can't simply
ram it down the throat of the American public
when they're not unified on how to
think about voting, political participation,
redistricting, or campaign finance, as examples. WENDY WEISER: So
I agree with them that one of our most significant
challenges facing our democracy is the extent of
our polarization. I think that I can
make an argument for how the reforms
in HR1 would reduce that polarization over time. But speaking in the
short time frame, I don't think that passing
HR1 would increase or reduce the polarization. I think it is independent
of the election rules that are out there. And I think that
political science research has shown that when
election reforms are passed in different states,
that it doesn't actually increase or decrease the
confidence in the election outcomes or elections. That often is much more tied to
whether or not your candidate or party won elections. So I think the policy question
and the public perception question are a little
bit distinct there. I don't think that it's a
reasonable position to take. And I'm not ascribing
this position to Ginsberg. But I don't think it would
be a reasonable objection to HR1 to say that there
is a significant portion of the population that wants
to restrict access to voting and subtract voters
from the electorate because they don't like
what potential election outcomes that would bring. That is inconsistent with
our constitutional design, with our country's principles. And I guess I would
take the position that even if there is a partisan
divide on that issue, which I don't think is true actually
when you get to the electorate level, though at in some
places at the extremes it is, that there's a principled
need to actually hold firm on the need to protect
the right to vote. And the need to ensure that
that's a baseline premise of our system-- that everybody should
be able to participate without significant
burden in a way that ensures the integrity
of the election outcome, that unnecessary burdens
are not appropriate. Similarly, in the redistricting
process, despite the fact that partisans-- I don't think it's the public-- might want to be
able to manipulate the process for their
advantage and to rig the lines, so that they can lock
in control over time, I don't think as a
principled matter we should accept that
as a legitimate goal and allow for those
tools to persist. We should look for a
neutral set of tools where everybody has
an even playing field and an equal chance
to persuade voters and to be held
accountable by voters. So I guess that's
sort of my argument is that these are
matters of core principle and not debatable
matters that I think that HR1 is trying to address. On the issue of the
particular reforms in there, when you look at the
public polling, which I'm not sure that that's the
best way to assess legislation. But if we're talking
about the polarization and how people are
going to react to it, the public polling is very
strongly in favor of each and every one of these major
reforms in a bipartisan way. And most of them actually get
a majority of Republicans too. Some don't. Some, it's a little bit less
than a majority of Republicans and certainly of
independents as well. So there's a deep well
of support in principle for the kinds of reform--
automatic voter registration, restricting dark
money in elections, ending partisan gerrymandering. These things generate
broad bipartisan support among the public. And so it is not clear
to me that they will lead to any additional polarization. There is the fact that
our Congress is polarized. And if it gets passed
on party lines, it will be spun as
a partisan takeover. And if it doesn't pass, it will
be spun as a partisan effort to thwart our democracy. And either way, we
will continue to be in this polarized discussion. But that's the discussion
we're in right now. GUY CHARLES: Thank you, Wendy. Ben, I'll give you
a chance to respond. But I want to press you
on one of the points too that you made on DC and Puerto
Rico, which you characterize as in some senses
a gerrymandering of the Senate, which would
be another way of thinking about it. And I found that striking in
part because it's hard for me to think about in the 21st
century of American citizens who have the full rights
of being American citizens, but don't have core fundamental
rights of participation. And that seems to me to be
inconsistent with the rest of your comments. I want to come back in a second
to your point about campaign finance reform because I think
you make very good points there on small donors,
and I'd like to hear how Wendy responds to the
policy argument, in particular. And then they don't think about
the constitutional questions. So I think that's
definitely worth unpacking. But I was a bit curious
about the DC and Puerto Rico. That strikes me as inconsistent
with the rest of the principles that you're espousing. BENJAMIN GINSBERG: So that
is a really difficult issue, especially I say
that as a resident of the District of Columbia. I have somewhat chafed under
this status for a while. But the reality is
that statehood bills for DC and Puerto Rico have been
proposed for a long, long time. There have been other
instances where Democrats had complete
control of Congress, and did not feel the need
to put forward DC and Puerto Rico on statehood. It comes now at this
time of polarization in a manner that would, in
fact, gerrymander the US Senate. And if you're talking about the
great problems in the country as a whole of our
polarization, then you have to consider the real world
political realities of what that would mean. And the sudden embrace of
statehood for those entities, if it is designed to gain
a political advantage for Democrats, will
have deleterious effects throughout the society. So that's why I
think that they will be perceived by
Republicans as particularly polarizing measures. WENDY WEISER: If
I could just add one just minor clarification
about what the For the People Act has in it. While it has findings approving
of the statehood for DC and Puerto Rico,
it doesn't actually have operative provisions,
like those are actually separate legislation. It also has findings
approving of and calling for the passage of the John
Lewis Voting Rights Advancement Act, and the Native
American Voting Rights Act-- also other critical
provisions that I think are also important
to address the crisis that we're in right now,
especially in the Voting Rights. Those operative
provisions are not in HR1. They're just the findings. BENJAMIN GINSBERG: So Guy, let
me make a broad point about HR1 in general and part of why it's
becoming such a flashpoint. So Wendy can talk about really
meritorious provisions in HR1. And I'm going to agree with
her on a whole bunch of them. But again, it is taking
the meritorious positions, the ones that can get
bipartisan agreement, but including in
the overall bill, the overtly partisan
ones in saying you've got to pass this one
big sprawling 800 page bill that will only go
through on a party line vote if it goes through at all. As opposed to doing
what could be done, if the real, pure goal was
enacting the meritorious provisions, which would
be to break it up, to consider the bill
on regular order, and to deal with the
individual provisions. And I hope we get
a chance to talk about a number of the
provisions in the bill and even in some of the state
voting bills that would improve elections in voting,
participation in the country, take down barriers
to voting but which are not going to get an adequate
hearing, a fair hearing, unless it's broken down. Because if it's just
this one big package, there are enough little
poison pills in it that it becomes a
polarizing part when individual provisions
could be the source of bipartisan agreement. GUY CHARLES: So Wendy,
let's talk about that. And this criticism
is being offered across the ideological divide. That is not just by Republicans
or right of center people, but also by some left of
center academics and activists, which is that an omnibus
bill is just a bad idea. It combines together
a bunch of stuff, whether it's ethics, campaign
finance, redistricting, voting rights stuff, that really
shouldn't be combined together, that should be given
different thought and hearing, and that there's the
possibility of getting some of these reforms
through, perhaps even in a bipartisan way, if it
weren't being rammed together as a package. And so that in and
of itself is part of the objection, including
perhaps some arguments as to some of the specifics
on either policy grounds, which we can come
to that in a moment, as well as on
constitutional grounds. So how do you think
about what seems to be an objection offered
by a broad range of people to the omnibus package itself? WENDY WEISER: So I want
to first start small by-- I'm thrilled that Ben Ginsberg
believes and actually supports a number of the
provisions of the bill and believes that there
are major portions that could achieve bipartisan
support in the Congress. Our experience of working
on this for a long time and trying to
accomplish that in each of the individual
provisions over time is-- I do not believe that at
this point is possible, that the parties have
become very polarized, especially on the
issue of voting rights. There's been no potential
for any movement. And the best case in point
there is the Voting Rights Act restoration, which
had traditionally been wildly bipartisan. Back in 2006, the
reauthorization passed unanimously in the
Senate, and nearly unanimously in the House, was signed
into law by George W. Bush. But the efforts to restore
it since the Supreme Court gutted its core provision
have struggled to obtain even one Republican co-sponsor. It has been clearly
divided on partisan lines. That's something
that has previously not even been controversial. So I think we're in
a different world to what can achieve bipartisan
support on the voting side. And I want to flip the idea that
the size or the fact that it brings together four major
areas is a weakness of the bill, because I believe that is
a strength of the bill. It's part of what is
giving it its momentum and its broad based support. Because these are
all reforms and areas as I mentioned that I think we
could all acknowledge there are real challenges
right now in each of these areas and American
democracy and something's going wrong. And different stakeholders,
groups of stakeholders care about one or more of
those areas more than others. And what we have right now is
a broad coalition of people from different backgrounds
and with different focuses that all actually
support and are pushing around with one package of reforms
instead of different slices looking at different
pieces and none of them getting enough
momentum politically to get on the table. So I do think that that's
politically a strength. And just as a policy
matter, as I mentioned, I think in all of these areas
we're at a crisis point. And it has been so
long since Congress has been able to legislate
on any of these areas that the problems
have compounded. And we are heading into
the point of where-- and some people think that the
crisis might be existential, where people are storming
the Capitol, where people aren't believing
in the system anymore. We can't wait for some
mythical coming together in this polarized time. That's the political response. GUY CHARLES: Let me ask you,
and then I'll turn to Ben. But let me just ask you
about the constitutionality of the For the
People Act, because the different provisions,
the different areas-- voting rights, campaign
finance, redistricting, presidential elections
versus federal elections-- seem to raise different
constitutional questions. So yes, the main
provisions of HR1 can seem to fall under
Article 1 Section 4-- times, places, and manners of
holding elections for senators and representatives shall
be prescribed in each state by the legislature thereof but
Congress may at any time by law make or alter such regulations. But what about, say,
the provisions dealing with presidential elections? Or what about the
provisions on redistricting? Or what about the provision
on campaign finance reform? So it seems that there is a
constitutional question here. And particularly, given the
makeup of the current court, that's a court that's
likely to focus on those constitutional
questions. And we'll start with you. And then I'll turn to Ben. And then we'll turn to
questions from our listeners. WENDY WEISER: So each
of the provisions of HR1 are designed to be and are
constitutional under existing precedents of the court. And so I'll give a
broad sketch of that. But that doesn't answer the
question as to whether or not the current court
or a future court might change its interpretation
of the Constitution. The Roberts Court has been
very unfriendly to democracy, to voting rights, to
campaign finance laws, and to attempts to make
redistricting more fair. And we've seen 20
years of decisions that have been undermining
our democracy in each of those areas. And so I understand
the objection that what's to stop
them from doing more. But this is one area where the
Roberts Court and even the most conservative justices
have been very emphatic that Congress' power to regulate
elections, federal elections is extremely broad. And so if we take in the
redistricting context, the Supreme Court
just a couple of years ago decided that
federal courts can't be in the business of policing
partisan gerrymandering even though it violates core
constitutional principles. And one of the bases
for its decisions was that Congress can fix this. The Constitution has a remedy. It's not the courts,
but it's Congress. Congress can address
partisan gerrymandering. And in fact, Justice
Roberts in that decision expressly called out
the For the People Act as pending legislation that
would address the problem that it said that the courts
were powerless to address, that that was the
constitutional role of Congress. That is consistent and,
in fact, the role-- and I'm happy to go on
at length about the-- this was discussed at the
framing of the Constitution. Madison was very emphatic
that Congress needed powers under the election clause
to prevent the states from engaging in
vote suppression and for manipulating
[? voting ?] rules in order to favor which
candidates they preferred or to entrench
themselves in power. And so this is precisely
what it was intended to do. [INAUDIBLE]
presidential elections. I'm sorry. GUY CHARLES: What about
presidential elections? WENDY WEISER: So
the elections clause expressly refers to
the federal power over congressional elections. The electors clause,
which on its face is narrower relating to
presidential elections, doesn't have the same
language in Congress making or altering the
time, place, or manner of conducting those elections. It just refers to the time. Of course, it was
drafted at a time when the populous
wasn't directly electing presidential electors. But since then, the
courts have uniformly interpreted the scope of the-- and the Supreme Court has--
of the Congress's power under the electors clause
as coextensive with that under the elections clause. So there's a long string
of decisions doing that. Under that, it has
upheld a whole range of federal regulations,
both on the voting side and on the campaign
finance side, regulating both congressional
and presidential elections without giving much
attention to the difference in that authorizing language. And so it's possible that
will change over time. But it also is more
workable that way. It would be a strange
system for the Constitution to set up for when
states are organizing elections, and holding
presidential and congressional elections at the same
time in the same places and in the same manner to
have a different set of rules that apply to both. That would be-- GUY CHARLES: Ben, do
you think that HR1 raises constitutional
and federalism problems? And where do you
think the divides are? So is it on presidential
versus other federal elections? Is that substantive-- campaign
finance, redistricting, et cetera? So what are the
constitutional questions that you think are
likely to come up? BENJAMIN GINSBERG: Well,
I think all the above. Just to make the broad
point, I appreciate that Wendy has frustrations
with the Supreme Court rulings of the last 20, probably
30 and 40 years in this area. But after all, elections
do have consequences. And so the vote of the people
has put certain people in power and they get to
nominate the justices. And so Wendy referred to
all the polling information that she says supports her law. But Supreme Court
justices are confirmed by the people who are
actually elected in elections. So in a broad point,
those decisions are the precedent
to be dealt with and provide a pretty good
indication of how the Supreme Court, certainly in
its current makeup, would look at all of this. And there will be different
constitutional challenges brought to different
provisions of the law. And if this law does actually
get jammed through the way the Senate would I think have
to do it now, what you'll-- I think litigation
around McCain-Feingold will be a perfect example of it,
where the as applied challenges are broad, the law gets
reduced and reduced and reduced because
the concept of what is constitutional
by people who put up a number of these provisions
is markedly different from what the court says. You raise one of the really
interesting questions about use of the elections
clause to justify this and whether that would
apply to any elections other than congressional elections. Because it is clear that
state legislators still do have the power to create the
rules for their elections. And should this bill get jammed
through by the Democratic Congress, I think you would
see a number of states, first of all, draft their own
rules but more likely start to follow the model
that's already used in the five states that
have off year elections. And you would see lots of
states under Republican control move their elections to the
odd number years in the New Jersey, Virginia model. In terms of a number of the
campaign finance provisions, all the usual First Amendment
arguments will be made. And for the voting and election
administration sections, which you discussed
about Article 2 Section 1, which talks about
presidential elections having no role for Congress,
that's all deferred to the state legislatures. So I think if passed the
textualists on the Supreme Court, which as I counted
is still a majority, would probably have
some real difficulties with presidential
elections obviously falling under what would be done
with congressional elections. GUY CHARLES: OK. So let's go to the
questions from our audience. Some of you been
asking great questions. Keep them coming. In fact, we've already
covered the first one, which was on the constitutionality. So somebody anticipated
and remembered their constitutional
law class at Harvard. So she taught them well. All right. So here's one question. There are a couple of ways of
thinking about voting reform. And for the most
part, race has been through the Voting
Rights Act the mechanism for thinking about
voting reform. HR1, though Wendy
as you said, yes, it nods to the John Lewis Act, that
seems to be much more of a-- it's not substantive. It's basically political. But has basically
taken partisanship and ideology and universality
as the basis for regulation. Does that matter both from
a policy perspective-- so does it matter whether,
say, the state laws that are being passed
across the country are motivated by
race or partisanship? Does it matter for HR1,
that HR1, unlike the VRA, doesn't seem to be
really motivated by dealing with
racial discrimination but seems to be motivated
by a universal consideration of political participation? How do you both think
about the policy questions, as well as what you think about
the constitutional questions? That's from one of
our participants. WENDY WEISER: So I'll
start with the both and. I did want to just add a caveat
first that I haven't expressly responded to Ben's
claim that there are provisions that are
partisan in either their intent or effect. And I want to just
say emphatically I disagree with that. And the provisions he
was talking about-- the small donor
public financing, the redistricting
provisions, the FEC reform-- GUY CHARLES: And I don't
think anybody would think that you would agree with him. WENDY WEISER: I just want to
be very clear that those-- and we could talk about
that not only is there real evidence that
there would not be any partisan effect of that. But they actually do
have bipartisan support and have been adopted with
bipartisan support in states and elsewhere. But putting aside that-- GUY CHARLES: While you're
there, Wendy, just before you answer the other question. But while you're there,
what about Ben's point, though, that the small donor
requirements would actually increase polarization, would
go to the extreme candidates or the extremes
of their parties? So aren't you worried
about that aspect of it? And also feel free please
continue on with the question. WENDY WEISER: So
there's a couple of reasons why that's not
something I'm worried about. So the first reason is that's
a problem under our existing system and with the
existing base of donors that we have people who
are motivated by either-- and we know that small
donors and large donors-- most of the studies out there,
the vast majority of them, show that small donors are no
more polarizing or polarized than large donors. And it is true that
some portion of them are motivated by
supporting extremes. And in fact, actually
much more of them are actually
motivated by winning races, competitive races. And that's where you see a
lot of the small donors being mobilized is around close
competitive races, that you actually end up seeing
a lot more of it supporting moderate
candidates as opposed to extreme candidates. But more broadly,
in practice, places that have had these small
donor matching systems have not experienced this
kind of polarization. We've had many years--
and maybe the country wasn't as polarized. But there were many years
under the presidential public financing system, this
did not lead to polarization. It allowed Ronald Reagan to
win with a landslide in 1984 without hosting a
single fundraiser. I mean, that was a system
that was used by Republicans and Democrats alike. And in New York City,
and Los Angeles, and other places that actually
have similar matching systems, we don't see that
effect of polarization. Because what the
real effect is it changes behavior, fundraising
behavior and donor behavior. More people-- it
increases who participates because your dollars
actually matter more. And it changes
candidates-- instead of dialing for large
donors, which are maxed out at a much lower rate,
actually spend much more time campaigning in their districts. And you see a much greater
proportion of their money comes from their
own constituents in their districts, and a much
more diverse set of people are contributing. So that's the actual
effect in practice. So yes, there will still be
some polarized candidates. And there will still be people
who are drawn towards them. And this system
will reward whoever voters support in that way. But it is a system that
I think will actually move in a different
direction away from this just extreme
polarization of the existing donor base towards
a more community and candidate constituent
focused politics. BENJAMIN GINSBERG: Can I
address that before we move on, Guy, because I think it's
a really important point. I mean, first of all,
what's envisioned in HR1 is not similar to what's in
New York City or Los Angeles. Because those systems
provide the match only for residents of
those jurisdictions. HR1, in fact, allows any donor
from any part in the country to give to any individual
candidate, which is totally different. And in fact, if someone was
going to game the system, they would give $200 to 435
different candidates, get the 6-to-1 match for each one. And so the whole character
of the HR1 concept of matching funds, even if you
agree with matching funds, is I think fatally flawed. It does indeed
polarize the messages. And political science
research is just crystal clear that the candidates who are
most successful raising money are the ones on
the polar extremes and not the ones with let's all
get together and compromise. But in campaign finance,
I think one area of bipartisan agreement is
that the current system isn't working. And what mystifies me about
HR1 as an overall reform bill in campaign
finance is that it seems to rest on the
notion of past performance is not an indicator
of future results. Because honestly, this concept
of small donors being virtuous and trying to starve
political party committees has led to the exact
opposite effect of what the system
is trying to get, what Wendy's advocating for. And in fact, she's right. Large dollars do
predominate the system now and individual donors do. And it forces all candidates
to spend too much time raising money instead of
like talking to their peers and maybe legislating. So honestly, if this was a
great reform bill instead of a Democratic
bill, we would have been rethinking the
basic notions that have not worked in any
way, shape, manner, or form since 1976. GUY CHARLES: OK. So we have 15 minutes. I've got to get to
as many questions from the audience as possible. So let me try. WENDY WEISER: I'll
answer that question. GUY CHARLES: And I will bundle
them together for you all. And you all are
amazing agentic people. So you could answer
however, whatever-- you can answer whatever
question you think I'm asking whether I'm asking it or not. All right. So starting with
you, Ben, a question has come up a number of
times from many members of your audience. The question is whether you can
identify specific parts of HR1 that Republicans might be able
to support or that you support. For you, Wendy, one
question that has come up is the absence of support
for third parties on HR1 and with objections from folks
who would like to have greater voice from third parties. And they're worried
about what HR1 is going to do for third parties. So we'll start with
you first, Ben. And then we'll go to you, Wendy. And then hopefully we get
another couple set of questions in there before we end at 1:10. BENJAMIN GINSBERG: I think the
election administration voting rights protections, which I
look at as interchangeable, and I think probably
Wendy does too, are the areas where you
might well be able to get some bipartisan support. I do think that there are
ways to reduce barriers to voting that actually,
if dealt with in the proper context, would work. I think the place
that you would start is look to an
appearance standard for election administration. We regulate everything in
campaign finance on corruption or the appearance of corruption. There aren't any real
corruption cases. If you take that principle to
the election administration, you would have an appearance
of public confidence standards, things that are in the
law to get people to agree that the elections were fair. Look what Governor Ducey
in Arizona and Governor Kemp in Georgia
said to Donald Trump about why their
elections were fair. And that would
form the framework. So there are
provisions of voter ID that I suspect could be melded
into an acceptable standard. For absentee ballots,
the validation process. Signatures are an
ugly thing these days. Nobody writes the
same way twice. They don't teach penmanship in
anybody below the age of 30. Signatures aren't right. But there are various
metrics that could be used. The deadlines on when absentee
ballots are received in return for extending early voting. Mail in early voting options,
which both Republicans and Democrats have used. Online registration provisions. [INAUDIBLE] provisions. The pre-processing of absentee
ballots before election day. And a variety of other
forms in that area I think are quite reachable. And there's probably a way
to deal with the preclearance standard as well as long as it's
not a return to the old days. The Supreme Court threw
out in Shelby County. GUY CHARLES: Thank you, Ben. Wendy, what about third parties? Does HR1 contain barriers
or make it harder? WENDY WEISER: So I wanted to
answer the earlier question because I think it was a
very important question about whether or not
to tackle voting rights from an anti-discrimination
perspective, or from a national
standards perspective. My answer is both. I think it is critical. As we've all been saying, what
we're seeing across the country now and the rollback of voting
rights is racially targeted. It is racially
motivated, and its impact is racially discriminatory. And so race discrimination is
a critical need to address. And the way we've
traditionally dealt with it is through the Voting
Rights Act, which was the most successful
piece of civil rights legislation in our
history, and we need to restore the
strength of that, so that we can better
combat discrimination. But that's not enough,
and we still saw-- and with the
preclearance formula, we're going to have
some key states and jurisdictions that
are repeat offenders, are going to be covered. And their legislation would
be reviewed for discrimination before it goes into effect. But the vast majority
of the country would not have that impact. There are certain
practices that there would be preclearance from
the updated one nationally. But by and large, when the
Voting Rights Act was in effect before the Shelby
County decision, we also had a wave of
voting restrictions-- not as significant as what
we're seeing right now-- but that passed into law. And many of them passed the
hurdle of the Voting Rights Act because it's hard to
prove discrimination, and because it also could
take years to go into effect. What the provisions in here
in the For the People Act do-- by creating this
national standard is it takes certain kinds of tools
of election administration that can be manipulated
for discriminatory results to target and boot out
certain groups of voters-- outcome determinative but in a
racially discriminatory way-- and takes that off
the playing field of what can be manipulated. You can't reduce access
to voter registration because everybody has a baseline
access to voter registration. So there's less that you can
do to actually accomplish discriminatory outcomes
because every American has a certain floor, a federal
floor that they can rely on. And so I think both tactics
are necessary, especially in the time that we're in. And then there's, of course, the
non-discrimination based case. These are actually good reforms. They lead to better
election administration. They're working
well in the states. They're leading to better
outcomes in all the places that have them in place. Like, they actually now
have a track record. And so it attacks both. GUY CHARLES: OK. Let me throw two other
questions at both of you. I will start with you, Wendy. And then the second question
will be for you, Ben. The first question
actually follows from what you were saying. And it's about the
Georgia voter ID law. And I think this is
related to the idea that the states are engaged
in racial discrimination. And the questioner asked, look,
the voter the Georgia voter ID law basically asks for voter ID,
last four digits of the Social Security, driver's
license, any government issued ID, passport,
utility bill, paycheck, Government check stub. And if you don't
have any of those, you can simply get a
free government ID. And part of the question
is, what's wrong? What's unconstitutional
with these types of state requirements? They don't seem to
be unconstitutional nor particularly targeted. Are they really imposing
illegitimate burdens on voters? And then for you,
Ben, you said earlier that voting rights for DC and
Puerto Rico are political. And the question
is, look, aren't the admission of any new
state always political? Is that really an objection? So let's start there. Let's see if we could
do that in five minutes, and then get another
round of questions in WENDY WEISER: So
the voter ID laws, there are voter ID
laws and voter ID laws. And there isn't a broad
opposition to voter ID, in general. The broad range of ID that
you have just outlined are actually required by
federal law for every new voter to be provided before
they vote the first time. What has been causing
the objections are the particulars of the
laws that are being pushed and how restrictive
the voter ID laws are. They are reducing the numbers
of IDs that are acceptable and excluding IDs that many
citizens of those states have. And they are reducing
options for people who don't have those
IDs to find another path to identify themselves, prove
they are who they say they are, and still vote a
ballot that will count. And so Georgia was
an interesting case because Georgia actually
passed the first or the second
strict voter ID law in the country limiting
the forms of ID to a narrow list of
government issued photo IDs. And at the same time, it
didn't provide for free IDs initially when it
was put into place. And it also had at the
same time increased the price of obtaining driver's
licenses or non-drivers issued state IDs. That was challenged
constitutionally about a decade ago. And it prompted Georgia back
and forth in multiple iterations to amend its law and
amend its ID requirements, so that more people had access,
so that it was no longer going to cost money, until it landed
somewhere that the court found was acceptable. The fights over voter ID are
all in their particulars, not the concept in general. And what the For the
People Act would do, it doesn't actually
ban voter ID laws. It accepts that states will
have different voter ID laws, and it doesn't change
the federal requirement that it applies to everybody. What it does say is if you
do have a strict ID law, you have to have a
separate process for voters who don't have those IDs to be
able to cast a ballot that will count and to be able to
swear to their identity before a state official. And that path needs to exist. So that both can coexist-- a voter ID
requirement and a path for those voters who don't
have those limited forms of ID to still cast a ballot
that will count. And that's 10% of
voters in many places. And some places, it's 3%. But that's a significant number. BENJAMIN GINSBERG:
Before I get to DC, Wendy brought up the
popularity of the provisions on campaign finance as a
reason to pass the law. Let's just say that the polling
on voter ID and people in favor of voter ID is even greater. So if we're going to
look at the popular will, we should remember that. And also one of the
frustrating things about this debate
that we're having now is that a number of the
reasons that Republicans and Democrats are
on each side got exploded in this past election. One was the Democrats
did just fine in states with some of the
strictest voter ID laws. And Republicans actually
did very well, especially down ballot in high
turnout elections. So whether the long
term Republican desire to put up barriers to
some people voting is justified got belied by the
election results. Moving on to DC, and
whether it's political, my point was not whether it
should be political or not. The point was that in 2021
given the polarization and the other
overriding factors, it is political right now. And it's always going to
be perceived as political as long as we're this
polarized, and as long as there's not regular
order on a bill. And it may just get jammed
through on a party line vote. So the ideal of
what it should be is different from the reality
of where it is in 2021. GUY CHARLES: Allow me to then
give you all the last word in less than 30 seconds
on what you would like to leave people with,
our wonderful audience, on For the People Act. I will start with you Wendy. And Ben, you will
have the last word. And then I will close. WENDY WEISER: Well, I
guess I'll start back to first principles, which is
I think that the politics are obviously in play here. But the For the
People Act reforms that have been pushed and
desired for many years and have been
successfully put in place by both Democrats
and Republicans in states and localities
across the country. So they are neutral
in their conception. At a particular
moment, whoever holds power, whoever holds the
reins in line drawing, might find a provision that
bans partisan gerrymandering, or requires transparency, or
an enhanced judicial remedy for gerrymandering to restrict
their ability to maximize their political power. But with a veil of ignorance
as to who would hold power, I think we can all agree that
that would be a fairer system that puts voters in control. And so I think that some of the
partisan disputes around this are based on who is
currently in power. And if we step back
and think about what principles our democracy
should function on, I think that the For the People
Act looks really differently and actually reflects what
our constitutional values are and what our values
are as a country. GUY CHARLES: Ben. BENJAMIN GINSBERG: It was really
important for the Rappaport Forum and Harvard Law School
to provide this opportunity to talk on both
sides of this issue because as I said we
are really polarized and that happens all too rarely. I do think there are any
number of areas where we could fight the
polarization a bit by finding bipartisan agreement. But I think that's not
going to occur at all if HR1 is in its current form and
brought forward in the Senate on a party line vote
as it was in the House. So my deep hope in the
principles of democracy is that we do go
forward in looking for areas of
agreement as opposed to getting this jammed through. GUY CHARLES: I hope that we have
achieved all of the elements of the Rappaport Forum. Great thanks to our wonderful
panelists, Ben Ginsberg and Wendy Weiser. Thank you to the
Rappaport Foundation and Rappaport family. Thank you to HLS and
the Dean's office, Dean Manning, Goldberg,
Liberty, Kennedy, and everybody else who work to
make this a wonderful session. So thank you to all and be well. This ends our forum
for this afternoon.
