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Heather Gerken: The real problem with Citizens United: Campaign finance, dark money, and shadow parties

February 3, 2014 1:07:28
Kaltura Video

Professor Gerken will argue that the "dark money" trend is a symptom of a deeper shift taking place in American politics as we move from the political parties we know toward what she calls "shadow parties." February, 2014


>> Good afternoon.  I'm Susan Collins, the Joan and Sanford Weill Dean here at the Gerald R. Ford School of Public Policy.  And it's wonderful to see all of you here this afternoon for another in our series of policy talks at the Ford School.  It is a real pleasure to have a number of our colleagues from across, just our neighbors from across the way at the law school joining us here this afternoon as well.  Well it is my great privilege today to welcome the J. Skelly Wright Professor of Law at Yale and alumna at the University of Michigan's Law School, Professor Heather Gerken.  It is delightful to have you with us this afternoon.  Our oldest, our own distinguished Professor Carl Simon has said of Professor Gerken, she's kind of a big deal.  Now in the interest of full disclosure he is her father-in-law.  Having said that, his praise is really accurate.  And I hope that you will have a chance to take a look at her bio in the program but I would like to tell you a little bit about her background before she begins her talk this afternoon.  She is one of the nation's top experts for law and election reform.  She's both an active academic and she combines her first rate scholarship with her quest really for practical innovations in federal reform.  Before teaching she clerked for Judge Stephen Reinhardt and also for Supreme Court Justice David Souter.  She practiced law at Jenner and Block in Washington, DC. and later served as senior legal advisor for then candidate Barack Obama's 2008 presidential campaign.  Harvard and Yale have both given her awards for teaching.  And her approach is featured in the 2013 book, What the Best Law Teachers Do.  And that profiles 26 outstanding U.S. law professors.  She's also very actively involved in real world issues as the faculty advisor of the San Francisco Affirmative Litigation Project which I had the pleasure of learning a little bit more about her, about from her first hand yesterday.  This partnership enables Yale law students to work on a range of public interest law suits tackling challenges like same sex marriage, legal services for immigrants.  Their childhood nutrition campaign recently was featured on the Today Show and in USA Today.  And so is getting quite a bit of prominence as it should, local issues but of extreme national importance as well.  In your printed program you will read that Professor Gerken's work was the subject of a fest strip [phonetic].  Well as some of you may know, fest strips are typically a volume of original work that celebrates a distinguished scholar that's typically done in the sunset of a career.  Well clearly she is not in the sunset of her career but involved very actively in challenging the ways that we think about federalism and thinking about how and what democracy must do to more effectively represent citizens.  On Election Day 2008 she was in Obama's campaign Chicago Boiler Room evaluating the real time challenges that might be impeding citizens access to the polls.  And her 2009 book, The Democracy Index, provides a really fascinating account of that experience.  And the book's focus is her proposal for a democracy index which is a tool that could measure how well American states administer elections.  You might wonder where the Michigan State fit in that and I believe that Michigan ranked 5th in 2008 and 2010.  But she might tell us a little bit more about that if you're interested.  Well I'd like to remind our audience that we invite your questions.  If you have a question for her please write it on one of the cards that should have received when you came in.  Our staff will be going up and down the aisles around 4:40 pm to collect your questions.  If you're watching us online, I invite you to tweet your questions in with the hashtag policy talks and we will try to fold some of your questions in in the Q&A session at the end of the session as well.  So again it is a pleasure and an honor to have Professor Heather Gerken and the floor is yours.
>> Thank you.  So thank you very much for this invitation and especially thank you to the Dean.  I've had a chance in the last day or so to witness her extraordinary graciousness and kindness.  And it is little wonder that the school is thriving.  I would have been honored to accept this lecture under any circumstances.  But for me it's a little bit of a homecoming not just because the law school across the way was kind enough to give me a full scholarship when I was a law student which has made an incredible difference in my life in addition to the fine education they provided to me.  But also as the Dean mentioned Ann Arbor has is what turns out to be the finest father-in-law.  So today I want to offer some food for thought.  Not a fully worked out theory, not a firm claim but a series of observations about the current state of campaign finance law and its long term effects on American politics.  So let me start first with what I am not going to say.  I am not going to tell you the near ubiquitous tale that is told by reformers, by reporters and even a fair number of academics about the current state of campaign finance.  I was just on a panel a few months ago where one of the country's greatest political scientist said exactly what I'm about to tell you I am not going to say.  So the story that is told is that the Supreme Court's decision in Citizens United treated corporations as if they were individuals for the first time.  It thereby ushered in a new era of corporate spending with wealthy corporations spending wildly and saturating the airwaves thus taking over American politics.  The story is that Citizens United has caused a sea change in American politics.  And that the courts overturning of Austin, the much revered case from Michigan I should add, in which the Supreme Court upheld campaign finance regulations in order to promote equality.  That the overturning of Austin was the modern equivalent of Plessy versus Ferguson.  Now even setting aside the overwrought reference to Plessy, almost all of that story is wrong and some of it is nonsense.  And I say that not as someone who is against campaign finance regulation but as someone who believes in it.  I say that as someone who believes that there is a bigger story about the relationship between Citizens United and American politics.  It is just not the story that we are telling.  Today I will argue that the so called dark money trend may be a symptom of a deeper shift taking place in American politics.  And it is one that Citizens United has helped bring about but not for the reasons that most people seem to think.  Today in short, I hope to tell you what I think is the real problem with Citizens United.  So let me just give you a quick overview of what I'm going to talk about.  First I'll give you a brief history of campaign finance reform and I hope debunk the conventional wisdom about the case.  I'll suggest that Citizens United mattered for reasons that have little to do with corporations or quality.  Instead, the most important part of the opinion was about the relationship between independent spending, the money spent independently of campaigns and candidates and corruption.  Next I want to show you that the court's ruling on corruption has changed the political landscape.  We all know that there is dark money in the system.  That is money spent by sources that are virtually untraceable.  And we all know how troubling it is to have dark money moving through the system.  But the conventional wisdom may be missing something more fundamental about the effects of Citizens United.  The decision may also push our current party system toward one that is dominated by powerful groups acting outside of the formal party structure, the shadow parties.  The worry then isn't so much about dark money but about shadow parties, organizations that house many of the party elites.  So I'll conclude my lecture by explaining why the emergence of shadow parties occurred further weekend are already flagging political system.  I'll suggest that shadow parties risk undermining the influence of what I think of as politics saving Grace, the party faithful who play a crucial role in connecting everyday citizens to party elites.  So let me begin with what I think the real problem is with Citizens United.  And to understand why Citizens United matters you have to know just a little bit of history.  The tale we tell in the academy is in the beginning.  Congress created the Federal Election Campaign Act and we saw that it was good.  The snake in this garden of this campaign finance Garden of Eden was the Supreme Court's decision in Buckley versus Valleo.  There the Supreme Court famously drew a distinction for 1st amendment purposes between contributions which is the money that you give to a campaign, and expenditures, the money that the campaign spends.  On the court's view expenditures were closely tied to cherished 1st amendment values and thus hard to regulate let alone cap.  Contributions on the other hand weighs weaker 1st amendment concerns and thus could be subject to more regulations including caps.  Now you can see the problem.  Congress intended to regulate both sides of the money politics equation, the money donated and the money spent.  By lifting the cap on expenditures by leaving in place the cap on the contributions, the Supreme Court created a world in which politicians appetite for money would be limitless.  But their ability to get it would not.  Two of my colleagues [inaudible] to give money star of politicians access to all you can eat financial buffet but insisting they only serve themselves with a teaspoon.  We all know what happened.  Just what you would think would happen.  Political interests inevitably looked for loopholes.  They inevitably found loopholes and they inevitably drove big trucks of money through the loopholes.  There was the soft money loophole.  When that was closed, people started to use issue ads to bypass the campaign finance rules.  Then came 527s and swift voting.  The 527s have been displaced by super packs, 501 C4s and C6s.  As a result, the entire reform game in campaign finance has been focused on closing these loopholes.  It is the regulatory equivalent of the carnival game wack-a-mole.  Now this brings me the first mistake we tell in our tale about Citizens United and it will be a familiar point to anyone involved in this regulatory game of wack-a-mole.  The flood gates of corporate spending were open well before Citizens United.  Due to an earlier Supreme Court decision, certain kinds of corporate and union ads were constitutionally protect as long as they were phrased carefully.  As long as those ads didn't explicitly encourage people to vote for or against a candidate, they were protected.  Citizens United simply eliminated the need to be careful about the ad copy.  To give you a very crude example, before Citizens United you could run an ad that said Senator X kicks puppies, call Senator X and tell him to stop kicking puppies.  And after Citizens United you could tell people that Senator X kicks puppies and you should vote against Senator X.  Now if there was time to amend the constitution to prohibit corporate expenditures it was well before Citizens United which means it was well before anyone thought that there was a problem.  Nor can we blame Citizens United for the fact that independent spending, that's the money that is spent separate and apart from the candidates and parties is hard to trace.  Citizens United ruled 8 to 1 in favor of the constitutionality of transparency measures.  The fact that so much independent election spending is dark money, money that we cannot trace, has to be laid at the feet of congress and the FEC which has failed to enact adequate disclosure regulations.  The final mistake that we tell in the reformers tale of woe about Citizens United is about overruling Austin, the Michigan case and the solitary Supreme Court case that relied on the equality rationale to upend, to uphold finance regulation.  Now you can imagine why reformers are so attached to Austin.  Equality is a deeply intuitive, deeply principled justification for campaign finance regulation.  But the overruling of Austin in fact was less significant than what the court said about corporate speech.  Austin was a symbol to be sure.  But in terms of the doctrine, the case was a sport.  Austin would have been an important case if it had ever been followed but it hadn't.  By overruling Austin all the court did was formally confirm its irrelevance to current doctrine.  Citizens United was important however.  It was important for reasons that reformers particular don't want to talk about.  That's because Citizens United substantially cut back on the power congress has to regulate in this area.  It is that part of the ruling, not the part about corporations, not the part about equality, but is reshaping the campaign finance like landscape.  So if you walk over to the law school, any first year law student will tell you that when congress regulates in this area it has to have a good reason to do so.  And Citizens United teams have dramatically cut back on the reasons that congress can regulate.  That's because it substantially narrowed the definition of corruption which is regularly invoked whenever congress is in the mood to pass reform.  Indeed while reformers have more into the courts rejection of the equality rationale, the most important line in Citizens United was not the one overruling Austin.  It was this one.  Quote, ingratiation and access are not corruption.  For many years before Citizens United the court had gradually expanded the corruption rationale well beyond quid pro quo corruption which is I give you money, you give me a vote.  The court had licensed congress to regulate even when the threat was simply that large donors had better access to politicians or the politicians had become, quote, too compliant with the donors wishes.  Indeed when the court went so far as to say that even the mere appearance of undue influence or the public's quote, cynical assumption that large donors call the tune, that was enough to justify regulation.  Before Citizens United in other words, ingratiation and access were corruption.  This loose definition of corruption was easy to satisfy and easy to invoke when regulating campaign finance.  After all, if congress can regulate when the American people think the fix is in, congress can regulate at any time.  What this meant in practice is that that the reformers could get almost everything they would have gotten from Austin without ever having to use the word equality.  But Justice Kennedy wasn't a fool.  He was well aware of what his liberal colleagues on the bench had been doing with the corruption rationale.  And he did everything he could to put a stop to it.  Justice Kennedy did not say that Citizens United was overruling these cases but it's just what it was doing.  Citizens United thus shifted the regulatory terrain surrounding independent spending.  The spending that is not done in conjunction with the party of the candidate but the one that's done independently.  That is the money spent by the super packs.  That is the money spent Karl Rove's Crossroads GPS.  That's the money that Justice Kennedy told us does not corrupt.  Which means that that's the money that neither congress nor the FEC can regulate heavily going forward.  Citizens United in sum did not matter because of what it said about corporations.  It mattered because of what it said about corruption.  If you're going to amend the constitution focus on the corruption ruling, not on whether to quote Mitt Romney, corporations are people too.  Now the evidence that the corruption rationale is the one that matters is clear.  Lower court decision after lower court decision has struck down regulations on independent spending.  That's why we have super packs.  That's why we have 501 C4s and C6s.  The numbers tell the same story.  There was a lot of money swishing around in 2012, a lot more than in prior years.  And much of that money involved independent expenditures, often untraceable ones.  But that money, as best we can tell, has not signaled a giant uptick in corporate spending.  The share of corporate spending looks roughly the same.  And it is not hard to guess why.  Most corporations would rather stay out of the game.  It's dangerous for one thing as Target learned when it was subjected to a boycott for one of its campaign donations.  Companies also worry about getting shaken down by people on both sides of the aisle.  As a general matter, corporations do much better by investing their resources in lobbying where their influence is both outsized and hidden from view.  That's where the smart corporate money goes.  So Citizens United mattered but it mattered for reasons that people have largely ignored.  It didn't unleash the corporate flood gates.  It didn't fundamentally shift the doctrine when it overruled Austin.  It didn't even prevent congress or the FEC from shedding light on the sources of dark money.  What Citizens United did do is substantially limit the extent to which congress or the states can limit independent expenditures.  That mattered for 2012 and it may matter even more going forward.  So let me, this brings me to what I think is really the problem behind Citizens United or has led me to what I think are the two real problems behind Citizens United.  The first is dark money and the second is shadow parties.  So dark money is the problem you know thanks in part to the court's corruption ruling there is a lot of dark money in 2012.  In 2008 I remember a political scientist told me on the Obama campaign at that point had 800 million dollars.  And the political scientist told me well, you know, Obama's got more money than God.  Now I'm not sure how we'd measure that but it's clear that the independent groups in 2012 had a lot more money than God.  Estimates consistently put that, their spending well over a billion dollars, that's billion with a B.  And much of that money was dark money that cannot be traced.  Now as I said before we can't really lay all the blame for dark money at the courts feet.  The push for independent spending was already happening in large part due to the failure of congress and the FEC, two of the most [inaudible] institutions on the hill right now, to keep up with the game of regulatory wack-a-mole.  Even before Citizens United, 501c organizations like a chamber of congress or crossroads GPS, the independent organizations that just dominated 2012, they fell outside of current regulations.  Nor has congress or the FEC done what is necessary to trace where the independent money is flowing.  So Citizens United didn't cause that problem but by deregulating independent spending in world without adequate disclosure measures, it exacerbated it.  And it certainly prevented congress and the FEC from doing much going forward.  So needless to say the problem we know is a problem.  It's a problem when billionaires can secretly spend giant amounts to cash to support candidates.  So I'm not going to rehash those worries here.  I imagine you're fairly familiar with them.  I'll just say that as much as I worry about dark money, I worry more that dark money is just a syndrome of a deeper trend in campaign finance.  My worry is less about money and politics and more about power and politics.  My worry isn't about dark money, it's about shadow parties.  My worry is that the super packs and the 501C organizations might someday become shadow parties as political leads adapt to the new regulatory environment ushered in by Citizens United.  So what is the relationship between money and power in this cycle?  It's a perfect example of what Pam Carland [assumed spelling] and Sam Azakroft [assumed spelling] called the hydraulics of campaign finance.  Campaign finance regulations do not reduce money's influence, they simply force it into different outlets.  Party donors whose contributions were limited turned to soft money.  When the soft money loophole was closed that money went into 527s, 527s marked the super packs and now 501c4s.  The money is still in the system.  It's just traveling down different channels hence the depressing lesson for the hydraulics of campaign finance reform.  Regulation does not necessarily reduce the amount of money in the system that may just shift it into different channels.  And that is what most the people in my field predicted would be happening in 2012.  But we missed a crucial feature about 2012 spending.  The assumption was that money in 2012 would move away from the parties into other structures and that the parties would therefore lose control of it.  Some even thought that this would give incumbent politicians an incentive to regulate independent spending.  Incumbents after all nationally worry about independent organizations.  Stepping on a campaign's message, sending the wrong signal and depriving candidates and parties over the control they much prefer to exercise over spending.  Indeed if there's one point of agreement among incumbents on both sides of the aisle, is they prefer to keep the money in their hands.  It turns out however the parties still exercise a lot of control over independent spending.  So what do I mean by that?  How can the parties exercise control over money that they don't have.  To understand how the parties can still control independent spending, to understand why Citizens United might matter, you have to understand the hydraulics of campaign finance as well as the hydraulics of party power.  You have to understand that parties are not stable legal entities.  They are shape shifters.  Once you understand how party leads can retain control over independent organizations you're going to start to worry I think that Citizens United matters for reasons that are different than we've suspected.  So here I should say I'm a law professor, so I feel like I should have footnotes coming down in the background.  So I'll note that here I'm drawing heavily on a wonderful article by a former student of mine name Michael Kang [assumed spelling] although it was written a decade ago and devoted to a different set of questions.  But Michael Kang argued that Pam Carland and Sam Azakroft had it wrong.  When they talked about the hydraulics of campaign finance he said that they had mistakenly identified a symptom of the hydraulics of party power for an independent phenomenon.  It's not money that has a hydraulic force Kang tells us, it's power, political energy.  Campaign finance is just the visible example of the ways in which the legal regulation can redirect but not eliminate political energy.  So to understand this [inaudible] it's just useful to start with a really basic point.  Political parties are not stable entities like a table or a chair.  They are loose collection of interests gathered together to compete with one other interest to put policies into place.  They can thus take different form as circumstances dictate.  And that means that parties are really hard to regulate.  They are shape shifters.  Each time we try to regulate a particular type of political institution, political entrepreneurs find new outlets to channel their energies, new institutions to occupy, new means of exercising power.  So the best known example in political science is McGovern-Fraser reforms.  And let me just apologize to the political scientist graduate students out there for telling what has become a bedtime story in political science.  So in the wake of the 1968 nominating convention, the democratic party substantially reformed the nominating process.  We now thing of conventions as something akin to a coronation, a chance to sell the candidate to the public but not a moment when a decision gets made but for those too young to remember, conventions used to be the moment when the standard bearer was actually chosen.  There really were smoke filled rooms with the nominee process was almost entirely controlled by party bosses.  So reforms had one major purpose.  To take power away from the party bosses and give it to the party membership.  It was the party elites versus the party faithful.  The party leadership versus the ground troops.  The people who controlled the money versus the people who cast the ballots.  Thus was born the nominating process we know today, one that relies on primaries and caucuses and involves broad participation by party members.  Now for a long time political scientists thought that McGovern-Fraser meant the end of the party elite.  But it turns out that as Star Wars would tell us, the empire always strikes back.  Party elites have still managed to exercise a substantial amount of control over the nominating process despite the absolutely fundamental changes that McGovern-Fraser introduced.  In fact, over the last decades almost every single presidential candidate nominated by either party has been the candidate favorite by party elites.  Now the democrats you'll be stunned to learn are a little more fractious.  And the republicans though have been virtually lock step with their party leaders.  2008 was actually a very strange election in this respect.  It was the only recent election where both candidates were not the candidates of the party elite.  John McCain looked like a traditional GOP candidate but he was loathed by party insiders because he was perceived as disloyal.  And Hilary Clinton was plainly the choice of party elites at least at the beginning of the process.  So how is it that political elites no longer have the formal power to choose and yet they still choose?  How do they manage it?  Elites exercise influence through what political scientists call the invisible primary.  If you watch a presidential race closely, if you're a political junkie you'll notice that before a single vote is cast there is an endless array of endorsements, the infamous super delegate, controversial 2008 just scratches the surface.  What elites do in essence is signal to each other through these endorsements which candidates they prefer.  Money, support and boots on the ground come with those endorsements.  And with money, support and boots on the ground come votes.  Hence the rather astonishing success of party elites.  It's not a foolproof system but it is far better a record of success than almost anything else in politics.  Now the invisible primary is just one example of the hydraulics of party power the way that shutting down one outlet for political power leaves another to be forced open.  I will say we're close to another great example of this test is in Wisconsin where you see a beautiful example of the hydraulics of party power.  During the first half of the 20th century Wisconsin, the good governance state, imposed substantial regulations on political parties.  It eliminated their ability to electioneer, make endorsements, raise money.  Formal parties couldn't do much [inaudible] on the nomination process.  So how did party elites respond to these heavy regulations?   They shape shifted.  They looked to statewide voluntary associations, that's the term, which interestingly enough had been created by dissidents within the party.  And these non-party organizations turned out to be incredibly enticing to the party organization.  Party elites abandoned the official party structure for the private statewide voluntary committees that supported the party.  The party elites did all the electioneering and fundraising that they needed to do through private associations.  And just as the Supreme Court and Citizens United blessed independent spending as independent from parties and candidates, so too the Wisconsin Supreme Court blessed voluntary committees as independent from the formal parties and thus protected by the 1st amendment.  The hydraulics of party power in short work just as you'd expect.  When one outlet for power the formal party close, power finds another outlet often a shadow party.  As the power of the voluntary committees in Wisconsin grew, they became the de facto parties in Wisconsin.  The shadow parties in short became more important than the parties themselves.  The Wisconsin example is what scares me today.  Because once you understand the hydraulics of party power, once you recognize the party leads will shape shift in response to changes in the regulatory environment, you can see that it's quite easy to imagine the rise of shadow parties in the wake of Citizens United.  In fact, we already see party leads exercising a great deal of control over independent spending organizations.  Despite the formal prohibitions and coordination, the super packs and the C4s are intimately connected with the real parties.  These organizations have started to look like shadow parties.  They're outside of the formal structure but they are controlled by the party leadership.  So to get a sense of which institutions matter these days, take a look at a great paper authored by one of my favorite political scientists, Seth Masket.  It grasps the connections between the people who run the independent 527s and the party elites.  So he just maps it with all these lines between them.  The connections are so deep and so pervasive that the diagram looks like a rat's nest.  The same deconnections run between the super packs and the candidates they support.  Most of the super packs are run by the people who used to run the campaigns, of the candidates campaign.  And it's not just staff members that tie the super packs to their the candidates, it's the candidates themselves as has been brilliantly shown by Steven Cobert who in my view has single handedly done more for campaign finance reform than anyone else in the 20th century save Richard Nixon.  So Cobert did a great skit with his fellow comedian Jon Stewart and his lawyer Trevor Potter in which Potter represented both Cobert and Stewart who was running Cobert's super pack at the same time.  Cobert even put the leaders of both of the campaign and the super pack on the conference call to talk strategy.  The only problem with Cobert's running joke is that it's too accurate to be funny.  He is playing it straight.  The reality is the farce.  The comedy is the tragedy.  While there is no common sense definition of coordination that would allow what we see today, the legal definition of coordination allows a great deal of coordination.  Super packs have used the same footage in advertisements as the campaigns they are supporting.  Super pack [inaudible] have even run what are basically the same ads.  Sometimes they even share the same office.  My favorite example occurred in 2012, companies working for both Romney's super pack and his campaign were in exactly the same suite in Alexander, Virginia.  Better yet, one of the, the founder of one of the company's was married to the deputy campaign manager for the Romney campaign.  And she can conveniently enough also ran a consulting firm that is housed, you guessed it, in the same suite.  So the husband temporarily cursed with self-awareness did at least admit that the arrangement looked quote, unquote, ridiculous.  But then returning the Ferdinand the bull mode, he also insisted that he and his wife never talked about the campaign ever.  He also told us don't worry about the coordination with a third company in the suite, one that works for Karl, for Romney's super pack as well as Karl Rove's Crossroads GPS.  Why should you not worry about coordination?  Well because it was separated from the other companies by a conference room.  Even the top tier leadership is connected.  Campaign had even some candidates themselves have begun to attend the super pack fundraisers while donors and operators of the super packs regularly consult with officials.  My favorite example of non-coordination between a candidate and his super pack occurred when Newt Gingrich told his own super pack to stop running certain advertisements.  Now this brings me to the point which in the paper was titled a few weeks ago, where will Jim Messina work in 2016?  And I will just say that Jim Messina has recently and graciously given me a perfect answer to this question for the purpose of this paper.  So this brings me to the worry. What does the emergence of these independent organizations mean for the structure of American politics?  What keeps me up is this question, where will Jim Messina work?  And I don't mean Jim Messina.  I assume he has many job offers.  But where will the kinds of people like Jim Messina work in 2016 or 2020?  I've been worried about whether the Jim Messina's of the world will be working inside the formal party structure or outside of it, inside the democratic and republican parties or inside the shadow parties.  And does anyone know the answer for Jim Messina?  Hilary Clinton's super pack, the shadow party.  The super packs and nonprofits after all have started to function a lot like shadow parties.  They raise money.  They push candidates and issues and their leadership is often the mirror image of the leadership of the parties themselves.  But these organizations have huge advantages over the formal parties.  They can raise unlimited sums of money often with minimal or no disclosure.  Election lawyers spend an endless amount of time dealing with [inaudible] associated with the formal parties raising money.  But if you're a lawyer for one of the shadow parties, your only worry is that congress or the FEC might actually start doing their jobs and pass regulations.  And let's face it, in this day and age that is not much of a worry.  Given all the advantages associated with the shadow party money is going to continue to flow toward them.  More importantly power will continue to flow toward them.  The worry is that in the ongoing and ever present battle between the party elite and the party faithful, the leadership and the membership, the independent groups may shift the balance of power between the two.  Now before I talk about this possibility I should just offer a caveat.  It may and it's one I just think academics should say more often, we don't actually know what's going to happen.  I don't actually know what's going to happen.  It may be that the independent organizations will mean nothing in the long term.  And I just think it's important to note the possibility of doubt because academics don't always do that.  But, you know, it wasn't that long ago when academics were wringing their hands and I mean not long ago as in five years ago.  They were wringing their hands over the weakness of the parties, the lack of unity.  The fact that there was a distinctive [inaudible] brand for the parties, it was just tweedle dee versus tweedle dumb.  And now it's just the opposite with almost every academic joining the human cry over powerful, united and cohesive parties with deeply polarized identities.  So just American politics churns at a market pace.  Any academic who tells you she is sure about what's going to happen in the wild and wooly world of politics is probably not an academic worth her salt.  Moreover we are dealing with shape shifters here, change is necessarily part of the equation.  More concretely it may not matter if the newly emerging shadow parties operate alongside the formal parties.  The parties have often split their functions.  Sometimes they contract out for example registration work or get out the vote work to independent organizations.  It's possible that the independent spending organizations will just be appendages, fundraising machines that allow the major parties to vastly exceed the limits we've imposed on them.  Moreover no matter how powerful these organizations become, they can't displace the parties entirely.  The party label is too important.  It is like a Good Housekeeping Seal of Approval.  It is a shorthand for voters.  A heuristic as a political scientist would say.  One whose importance cannot be underestimated.  Being the standard bearer of a major political party really matters.  For all of its money and power, a Karl Rove's Crossroads GPS is a political brand unknown to most Americans.  It isn't going to be running a presidential campaign anytime soon.  But the role of the party in American politics goes far deeper than merely serving as a political shorthand for voters.  And here's where one might start to think harder about the emergence of the shadow parties.  Political parties don't just matter because they provide us a shorthand.  Parties are also the fora in which interest groups [inaudible] battle and reach deals that allow for governance when the time comes.  Parties are where a lot of democratic compromise takes place.  Each major party offers a set of policy making compromise and Americans often reluctantly choose between.  We sometimes think that politics and parties are a problem and governance is what matters.  But politics and parties are what make governance possible.  Parties also provide the energy that fuels our democracy, their source of a lot of its generativity and creativity.  Party leaps serve as one professor has called conversational entrepreneurs in American politics.  The battle between the parties, the battle within the parties, the war among political elites and factions and interest groups all help set the policy making agenda, T up questions for voters, freeing issues, fracture coalitions and generate new ones.  So given the role political parties play in American politics, should we worry about the development of shadow parties?  The nonprofits and super packs do a lot of the things that major parties do.  They are institutions where leads can strike bargains, forge compromises, drive debates, frame issues and sell candidates.  If these groups mostly existed separate and apart from the candidates, we might not worry because the one thing a party requires is a candidate.  That is as I noted earlier why many thought that incumbents might put a stop to independent at some point because they didn't want political power to exist outside the parties.  But now incumbents can have their cake and eat it too.  They can, these shadow parties are so tied to the candidates and the parties that politicians can take advantage of everything that the formal party structure offers while being backed by powerful independent funding raising machines.  For this reason you can imagine shadow parties developing into institutions with strong ties to the candidates, to the donor base, to all of the lead decision makers and interest groups that matter for a campaign.  But the one thing, the one thing that these independent organizations will never house inside of them is the party faithful.  The party faithful are the people who knock on doors, make calls, show up at rallies and spend countless hours working for campaigns.  They are the everyday people who are passionate about politics.  The party faithful do most of the groundwork for the campaigns.  You can call them politics foot soldiers, you can call them partisan hacks, you can call them crazy.  I call them the most glorious creatures in American politics.  And even as the shadow parties influence grows, the party faithful still reside in the formal party.  So what happens if the center of gravity shifts?  What happens if the elites run the shadow parties and the party faithful are left by themselves in the shell of the formal party?  What happens if what really matters in politics happens in the shadow party not the formal party?  So let me give you a crude example.  The Christian Science Monitor ran a rather extraordinary story in the fall of 2012 when Romney was behind in the polls.  The story suggested that the Romney campaign didn't have enough money to take it through to November.  It was depending on outside spending particularly Karl Rove's massive war chest.  And the reporter asked a simple question, what happens if Karl Rove decides to cut Romney off?  Now imagine that you want to be a player in GOP politics.  Where do you want to work?  Do you want to work for Romney's campaign or Rove's, Romney's formal party or Rove's shadow party?  As I said it's possible it won't matter.  It's possible that these shadow parties will simply remain a convenient means for evading campaign finance roles.  But it is also possible that the [inaudible] missing as the world will be housed in the shadow parties, that the center of gravity will shift, we'll see a bipartite world where elites and big donors occupying one institution, will lead enormous power by virtue of their money and the party faithful occupying the other.  I worry about a world dominated by shadow parties and that's because I have a slightly romanticized view of the party faithful.  I think of them as one of the few groups capable of keeping the parties honest.  So there's long been a conundrum in politics.  Given that no voter can monitor every representative, how does the principal control the agent?  How do the people control their representatives?  For a long time one answer to that question has been the political parties.  They enforce party discipline, punished defectors, reward loyalists and keep the brand distinctive.  But then of course one wonders who will guard the guardians?  Who will insure that the parties do right by the voters?  Now one possible answer to that question is the party faithful.  They serve as the bridge between the elites and voters, between the party and the people.  They provide an institutional check on the bargains that the leads can strike.  Some break on how many principles will get compromised along the way to the right White House.  Now party faithful are often political realists, they're often political cynics in fact.  They get that compromise needs to be made.  But they also believe in something, that's why they are the party faithful.  Now the party faithful's influence comes through informal mechanisms.  The influence that comes from being part of the same organization, be under the same roof, interacting regularly with the campaign leadership.  We are all social animals.  We are all influenced by the people around us.  Our views are shaped by the people around us whether we know it or not.  So if you have faith in the party faithful you might worry about shadow parties because they hive off the party elite from the party faithful reducing the day to day interactions that has long connected those two groups.  If you have faith in the party faithful, you might worry about the emergence of a dual system, a party and a shadow party.  You might worry that it will reduce the party faithful's most important form of influence, the influence they exercise by virtue of the fact that they're part of the same organization.  Big donors and big interests have always placed an outside role in American politics.  Until now though one important access point for the everyday concerns of everyday people has been the everyday people who work for campaigns.  What happens when even that access point is eliminated?  If you have faith in the party faithful, the emergence of shadow parties might worry you for reasons that have nothing to do with the conventional wisdom about big donors and dark money.  So I will end with a modest perhaps even more optimistic claim.  Politics is an ever changing and dynamic force.  But I will stick with my romantic point as well.  As the campaign finance landscape evolves in responses to Citizens United deregulation of independent spending, we should lose track of the parties and hacks, politics foot soldiers, the worthiest and most honorable participants in the party structure which is the party faithful.  While I've been among those who worry about driving money outside the parties, my bigger worry is that we're driving power outside the parties turning them into shadow organizations whose utility to the candidates is going to amount to little more than a shorthand.  We're separating the party elites from the party faithful.  We're insuring that the party elites talk to the moneyed interests and the party faithful talk to the rest of us.  The informal social network that once provided a bridge between these two worlds is slowly being dismantled.  I have faith in the party faithful and hope very much that they will continue to wield the power that they do.  And it is hard to see how that will be true if the power of the shadow parties eventually exceeds that of the real ones.  Thank you very much.  ^M00:43:05 [ audience applause ] ^M00:43:12   So I think I'm supposed to answer questions.  ^M00:43:15 [ background sounds ] ^M00:43:22
>> Yes, we've got some questions from the audience.  The first is [inaudible] party elites is something of a nebulous term.  Who are the party elites and can you give us specific examples of who these people are?
>> Yeah, it's a great question.  So, the party elite, who the party elites are will change depending on the time in the parties.  So there are a couple.  They are obviously the candidates, the top tier campaign managers, the big funders.  But they're also the interest groups that organize both money and votes.  So for the democratic party, the party elites include unions, certain kinds of interest groups in the environmental area and a variety of other places.  In the republican party, you know, there's, the Christian Right is a good example.  The elites to the Christian Right are also party elites.  So, it's a loose definition and [inaudible] but that's partially because it has to be a loose definition if you're really going to talk about who matters in the party structure.
>> Hello, my name's Clare Hutchinson [assumed spelling], I'm a second year MPP student here.  Another question we had from the audience today was how concerned should we be about foreign governments, corporations and individuals donating to super packs?
>> This is a really good question.  So, so federal law bans foreign corporations from donating money directly to the campaigns.  There, so one of the things that you quickly begin to learn when you start to talk to your friends who do corporations work is that you really, that's actually a much harder thing to enforce than you think it is.  And so let me just give you an example.  A lot of companies don't even know who their ownership is.  And they just can't even tell you.  And it's very hard to trace because of hedge funds and a variety of ways of which company ownership is parched out, who's in charge.  So there has been some worry on the hill that foreign corporations are still indirectly through their ownership able to influence American elections.  We don't have a ton of evidence of many direct contributions.  So should we worry about it?  The way you worry about it really depends on where you fall on the globalism spectrum.  So there are some people who are hard core [inaudible] activists who think look, all that matters is the message.  It doesn't matter who's paying for the message.  All that matters is that voters get the message.  If foreign corporations who obviously have an interest in what happens in the United States, if foreign donors want to give the American people message, they should be able to do that.  People on the other side of that worry very much about the potentially corrupting effect of that money.  That is if you worry about domestic corruption you also worry about foreign corruption because the levers of power work the same way.  I should say that the question is actually reproduced even at the state level.  So there are questions about whether or not it's a good thing when money goes across state to state.  So, for those of you who are familiar with the Massachusetts senate race, that was a huge amount of money.  Most of that money came from outside the state.  That is it was the single senatorial election of that period.  Some people think that's a good thing, right.  So some people say look, my world matters if Elizabeth Warren or her opponent is senator or not.  You know, the balance of power's going to matter whether or not the person's elected by Massachusetts or my own state.  And some people think well no, but it's Massachusetts senator.  And so it should only be people in Massachusetts who are taking part in that debate.  So a lot of it, you know, you can see how it's just [inaudible] except at least in the United States we understand ourselves to be part of a national system in the same polity.  When you move to the international spectrum it's not as obviously a cohesive polity even though we're clearly influenced by one another.
>> My name's Erin Sultan [assumed spelling], I'm also a second year MPP at the Ford School.  Another question is would strong disclosure laws make a difference in tempering the power of the super packs and [inaudible]?
>> Yeah, that's a great question.  So it depends on what you think about the American people's attention span.  So, I say that not sarcastically.  I mean, I do a little sarcastically.  So just to give you a little background, you guys are not the average voters I would guess.  For example, you could probably tell me who's in control of congress.  You could probably tell me who the Vice President is.  You can probably tell me if the economy's getting better or worse.  You probably, although now this is Michigan fans, you probably are not going to change your vote for governor depending on whether your home team loses.  Although, I realize that that's a fraught question here, maybe you should.  But a lot of voters don't know those things.  So an extraordinary a lot of number of voters don't know there's a senate.  A lot of voters when they go in to cast a ballot for congress don't know who's in control.  And if you don't know who's in control it's a little bit hard to punish people for what you think is wrong.  A lot of voters vote based on whether it's raining.  And you can see peoples political face moving up and down by basing the weather of that day.  They hold the governor accountable for the weather.  And, you know, maybe on some level global climate change, you can trace it, but that's not really we would guess fair.  So voters don't know a lot.  When voters don't know about even who they're casting a ballot for the worry is you could actually provide all the information in the world about donors and voters would not pay attention.  So that's the cynical account that suggests that even as we increase disclosure, it's really not going to make a difference.  I don't think that's true.  That is I think it is probably true that we don't need to know the granular information that we have.  I mean, who's ever looked on one of these Websites who donated to what candidate.  Okay, did you do it because you were trying to trace corruption or were you just curious what a professor donated to a candidate, right?  So there's a certain level which the low level donations which are, it's hard to imagine $200 corrupting any candidate.  But the low level donations are a little bit more a source of gossip than they are a source of tracing the deep seeded problems in American politics.  But the big money I think if you could trace it, you would see things.  So for example, just a couple examples, we know now that the insurance companies donated huge amounts of money to the Chamber of Commerce during the debate over Obamacare.  And then the Chamber of Commerce ran the ads.  And if, just to an example of disclosure, if on the ads run by the Chamber of Commerce, they didn't say paid for by, you know, the Chamber of Commerce, friend of small business everywhere.  But they said paid for by AETNA.  My guess is that the average person is going to use that shorthand to figure out whether or not it's a good thing to believe that ad or not.  But right now all the money gets run through these organizations like Americans for America which I used to use as a joke in my class.  Although one of my students insists that it exists.  So, when Americans for America pay for the ad, it seems like a really good idea to have clean coal.  When it's messy coal running the ad you might be a little more skeptical about the regulation.  So at the very least what I would like to see is not just disclosure, that is sort of the big tracing of the money, but disclaimer.  So things right on the ads that say that, you know, the top donors that gave this money are these three people.  Because I think that makes a difference in how people absorb those messages.  And that is the basic idea behind disclosure.  But I don't put my faith in the idea that we could flip a button, disclose everything and suddenly American people would change their voting habits dramatically.  I think that's probably not true.
>> So the next question we have for you is actually this time last year Lawrence Lawsein [assumed spelling] joined us to talk about his thoughts on reform for campaign finance.  Do you think that that is the cure all, public financing is potentially one of the cure all's for all the issues that you talked about today.
>> Yeah, so boy, I must be such a disappointment in the wake of Larry.  Because he's got like a million things on his screen, it's all moving.  And, I mean, I'm a chalk and blackboard kind of person.  So I'll just say I think that it's a start.  But I'm most worried about Larry's suggestions is I worry they're not constitutional under the curtain machine.  But that's not to say they aren't constitutional in the court changes.  But right now what Larry is asking for in a lot of areas are things that the Supreme Court have heavily hinted are not constitution or has directly said they're not constitutional.  Now as to public finance, every other serious democracy thinks very hard about public finance.  And most of them have robust public finance systems.  Some are better and some are worse.  So public finance really is a good system.  The trouble is is in a world where there's also private money, it's very hard to maintain a robust public financing system.  So first of all if you ever, every time I go and talk to politicians, I do two things to irritate them.  So the first thing I do is tell them by the way you know you're never going to be voted out of office because they're all sure they're going to get voted out of office tomorrow and that shapes their behavior.  But the second thing I always sort of nudge them on is well just pass public finance if you're so worried about these kinds of questions, pass public finance.  And they say to me I am not going in front of my constituency and telling them that they in this tough world of budget cuts should put more money into pockets of politicians or at least their campaigns.  So one, it's politically very hard.  But two, given the current constitutional constraints it's hard to make it work in a world where there's tons of private money.  So when Obama for example refused to accept, you know, decided to opt out of the public financing system, a lot of people thought it was the end of the world.  Because this is the end of the one last robust public financing system.  I thought the guy's not going to get rolled, right.  Because to be a realism in politics if he wants to win he's going to need to opt out of that system because he's going to be able to raise so much more money and compete in such a stronger way.  So I think the problem is most public finance systems are ones that just can't keep up with the private money.  So until we get to the point where we regulate both sides of the equation, the money going in and the money coming out, I don't think that it's realistic politically to expect public finance is going to fix our problems.
>> This question touches on that political side.  How do we pass campaign finance reform when politicians who benefit from not having reform are needed for it to pass?
>> That's a, yeah.  This is, in my field we actually have a term for this, the fox is guarding the henhouse. So, you know, the political actors are both refing the game at the same time they're playing the game.  And you'd be surprised to learn they are not interested in giving up that power.  And so we have this dilemma which is the people who know the most about reform, the people who care the most about reform are the politicians who oppose reform.  So that makes it very hard to figure out what to do.  And I, a lot of academics I will say think that we can just add water.  You know, if they just announce this brilliant strategy for reforming campaign finance that just add water and we'll have it magically appear.  I don't know why they think that.  I don't see, I did not get a magic wand when I got tenure but maybe they did.  So I think the way to think about it, all of these problems, not just in campaign finance but in redistricting, in election administration where this problem is reproduced over and over, is to think about it as a here to there problem.  So what do I mean by that?  I mean that the question is we all know that the problems are here, we have a lot of good ideas for the there.  But almost no one is thinking about the here to there problem.  How do you soften the terrain for reform?  How do you make reform easier?  So I think that the key is to try to think about small reforms that make bigger and better reform possible.  And so the Dean was kind enough to talk about my democracy in [inaudible] proposal which is rank states and localities based on how well they run elections.  It's not going to solve all the problems in election administration.  But it is going to give us a way to tell states when they're doing well, like Michigan, to shame states when they're not doing well like my home state of Connecticut.  It's a way to start to begin this sort of start a conversation about election reform and put a set of tools in reformers hands that will help us push it forward.  In campaign finance I think there are examples of that as well.  So one example is I actually think that one of the easier things to get passed is matching systems.  Because matching systems help politicians raise money.  They're interested in doing that.  And the thing that's nice about matching systems is that they don't try to get money out of politics but they harness money to fix politics.  That is they try to use the incentives that politicians already have to make them redirect their energies towards smaller donors and everyday people.  So there are things that you can do like that.  But I will just say it is a, [inaudible] of being an election person is that every time you come and talk about reform you just, you sound like the most cynical depressed person in the room.  I mean, I, I will say, I used to, I do think that the people who have the hardest job in American politics are reformers because every day they have to get up and no, it's not going to happen today.  And it's probably not going to happen tomorrow and the day after.  And part of that is because the scandal is the practice that we've lived with so long.  The scandal of redistricting is that legislators draw their own lines.  The scandal of campaign finance coordination is that their coordination just the way that Cobert tells us and that has not started a national movement behind the right to vote.  It's hard to get people jazzed about this stuff.  Because they think about the economy and they think about healthcare and they think about immigration.  But they don't think about the relationship between the political process and those [inaudible] to policies.  It's hard, it's one degree removed and it's hard to get people excited about it.
>> Can you discuss Wisconsin's voluntary committees and committees and Feingold's loss?  Was this because of his quote grassroots fundraising or did he participate in the voluntary committee system too?
>> So voluntary committees eventually disappeared because Wisconsin shifted its regulations.  So once, Wisconsin is now more of a classically, it looks more like everyone else.  And as for Feingold's loss I don't know, I mean, I don't know enough about Wisconsin politics to know exactly what happened.  I mean, he's sort of an iconic politician and iconic politicians don't always succeed in the political process.  So maybe that's the reason but I don't know enough about why he didn't, he didn't move forward.
>> Thank you.  And this question is on a slightly different topic.  Can you discuss voter ID laws and the state of Supreme Court decisions in that area?
>> Sure.  So voter ID laws are, I mean, I will tell you I obsessed about these for a very long time when I was working for the Obama campaign in 2012.  Voter ID laws are a new technique in what Rick Hasen calls the voting wars.  So their efforts to require identification from people when they cast a ballot.  So I will say I think that for everyday citizens that there investment in voter ID is a purely, it's a principled one.  That is, you know, my mom and dad will tell you I need a license to get on the plane.  So why don't you need one to cast a ballot?  And I get that entirely but it is a solution in search of a non-problem.  So just think for a minute.  Imagine there's larceny in your heart.  Imagine just once in your life, you thought you might steal an election.  How are you going to steal an election?  So you have a couple options available to you.  One would be to take a hundred voters and bus them around from polling place to polling place and each place giving fake names of dead people or Mickey Mouse or whoever's on the registration rolls.  And hoping that nobody notices this giant conspiracy.  That's one and you, you know, you get a hundred votes a pop.  The other possibility is you stuff some absentee ballots, you bribe a poll worker, you insert a virus into one of the machines.  There are many, many easier ways to steal an election than bringing someone to the polls to cast a ballot.  So asking someone for their photo ID is incredibly unlikely to deter fraud.  As far as we know almost all the fraud in the United States comes from absentee ballots and the like.  Which suggested even if you're dumb enough to steal an election, you're not so dumb as to do it by bringing people directly to the polling place.  So there's not a problem on the one hand.  On the other hand it has an effect on people who don't have IDs.  These include senior citizens whose licenses have expired.  I would say include students, if you see how these laws get passed.  They let lots of state issued IDs work except for university IDs because, you know, those are suspect.  And it has an effect on poor communities and urban communities.  And so, so I'm all in favor of protections against fraud but I'd like to see those protections where there's actually a problem of fraud and not where they unduly burden people.  So I think the politicians who pass these laws are cynical.  And I think that unlike, you know, the average American person, the politicians who pass these laws pass them because they are a tool for helping one party and hurting another.
>> Earlier today you said that a smart corporation goes into lobbying rather than donations.  Isn't there kind of an intrinsic connection between the two?
>> Yeah, it's a great, it's, actually I've just been writing about this.  So the one strange thing about my field, it has not paid a lot of attention to lobbying.  And the reason is is there's not a lot of things you can regulate in lobbying because lobbying well before campaign finance was giving these sort of robust 1st amendment protections because it's an opportunity to petition the government.  Lobbyists have really been hard to regulate.  So you not have the foxes guarding the henhouse problem, you know, congressional members don't want to regulate lobbying that much but also you have just the fact that the Supreme Court would be striking down almost everything you'd want to do.  There is a relationship between the two.  And I can just, there are countless examples of it.  So one is just the fear that politicians have.  So when the well healed lobbyist from a big corporation comes in your office and asks for a give me, a lot of politicians are worried that behind that lobbyist a lot of money, especially a lot of independent money.  And they don't ever think they're going to get trapped.  They don't think the lobbyist is going to go back and tell their client run a campaign against this guy because he wouldn't give us the tax loophole we wanted.  No, they'll run against something that's, you know, what the guy did for, you know, on criminal law or immigration law or something.  So one is just the fact of that, is that people just worry about this, the possibility. But the other is that the lobbyists are now gathering and bundling money.  There's this new trend now, you can, a lobbyist can't buy you an expensive lunch in Washington.  But they can fly you out to a really lovely campaign finance fundraiser in the mountains with skiing and everything like that.  So there's all these crazy rules that allow lobbyists to exercise a lot of power.  So they're directly tied.  Moneyed interests are the ones that are much more likely to get the attention of representatives.  And then they're now indirectly tied because lobbyists are shape shifters right?  They're figuring out ways to get to the politicians even when certain channels have been shut down for them.
>> Do you see any sort of productive avenues for litigation that might raise questions in new interesting ways that would, you know, in the next years that manage to get something to happen at appeals courts and the Supreme Court?
>> Yeah, I mean right now I think there are defensive wars and offensives wars.  On the defensive war, the one thing that I will say is that the mistake of the reform community and I don't mean the reform community, I mean the donors.  The donors passed McCain-Feingold and I thought check, got campaign finance reform and they pulled all the money out of campaign finance.  As a result the litigators weren't there to defend it.  So there's a guy name Jim Bopp and I always follow every one of Jim Bopp's cases because what Jim Bopp says now which seems like it's never going to happen because it's against the law, in ten years is going to be the law.  And so Jim Bopp is filing cases all across the country.  Has been incredibly successful in dismantling the campaign finance system piece by piece.  He's supported now by a very well healed bunch of lawyers.  So one is just having good defensive lawyering to defend new state regulations, to defend existing public finance schemes.  I mean, they're challenging public finance as unconstitutional.  And you might wonder how could public finance be unconstitutional but their argument is very simple.  If you have caps on contributions, you don't need public finance.  It's excessive right?  It's just trying to level the playing field, promote equality.  You're not allowed to do that so even public finance is at risk right now.  So one is a defensive war.  On the offensive war, one of the really interesting things I thought came from 2012 was that the people who were challenging election administration decisions including voter ID, were winning.  And I include the campaign in this.  We were winning cases that were, you know, you might have guessed would be hard to win.  Now I'd like to tell that that's because we were just the greatest lawyers in the world and we just waxed them.  But that's not what happened.  Some, there's been a shift that the courts have become more attentive to the ways in which partisans are manipulating the election system.  And going back to the part of the question I didn't answer, photo ID is the perfect example.  So the Supreme Court has a photo ID case that went up a few years ago called Crawford.  It was a very generous opinion toward photo ID.  It made it very hard one would think to bring photo ID challenges.  And yet, the photo ID challenges have been pretty successful.  And not just ones just brought under the voting rights act but actually ones brought under state law.  So for whatever reason it is the judges are attentive to this and they recognize, I told the students this today, in some ways an [inaudible] judges are the Obi-Wan Kenobi of election reform, right, they are our only hope.  Help us Obi-Wan Kenobi, you're our only hope.  And usually courts are very reluctant to get involved in political regulation.  Usually they don't want to do it.  But here is the one example where they've started to enter into the fray in 2012.  And so I have some view that affirmative litigation on things like photo ID and the manipulation of election administration is one productive area of litigation going forward.
>> So our last question today would be what role could students play in kind of thinking about these types of issues, both the voter ID laws and campaign finance?  As you know these are topics that we're discussing in our classes on the day to day.  [Inaudible] encourage us to think about it.
>> Yeah, it's a great question.  So one is if I had my imaginary wish for the incredibly bright people of the world here, the first thing I would wish is that you would actually get organized around this.  Because, you know, the good governance groups don't really have, they have a lot of, you know, groups but they don't have a lot of sort of boots on the ground.  Until there are boots on the ground there's not going to be movement on this question until it matters to politicians for votes, they are not going to change this.  And the only way is to find some way to reach people and get them to coalesce around these issues. That's a really hard thing to do.  So I'll ask, here's some easier tasks.  If I actually had, if I were telling students to do something, one of the things I might tell them is just do something simple like next time forget about volunteering for the campaigns, go volunteer to be poll workers.  I will say that one of the, I hear a spirited yes in the back.  You know, one of the things that really struck me about 2008 and 2012 is that what mattered the most on election day for everyday voters, what was really the civil rights cause which is really the cause of poor people, which is the really the sort of partisan cause was just having a well-run system.  Because most of the problems that happen in the system don't come from partisan evil.  They come from incredibly low resource places that don't have enough money to run an election system properly.  From people who are not properly trained or have familiarity with computers or who just, you know, overwhelmed because they don't have enough people in the booths.  So you can, I mean, I had all, all my starry eyed idealistic students when I was working on the campaign really wanted a job at the campaign.  But I did want to see them just, if you were a poll worker in a place that mattered, you could make such a difference for voters in a way that you might not actually working for the campaign.  So I would just say it's just a simple thing, it doesn't take that much of a commitment but it makes a big difference in the long run.  Thank you very much.  ^M01:06:52 [ Audience Applause ] ^M01:06:58
>> Well I'd like to thank all of you for joining us.  I hope you'll stay to continue the conversation on these very important topics.  We have a reception just outside of the auditorium.  And with that I would invite you to join me in giving our speaker Heather Gerken a round of applause for her real candor and thoughtful insights for sharing them all with us.  Thank you very much.  ^M01:07:21 [ Audience Applause ] ^M01:07:26