At the ACS National Convention: Picking the President: Parties, Primaries, and the Democratic Process
As we mentioned yesterday, we’re currently attending the 2008 National Convention of the American Constitution Society. For those of you not familiar with ACS, here’s a short description:
The American Constitution Society for Law and Policy (ACS) is one of the nation’s leading progressive legal organizations. Founded in 2001, ACS is a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals. Our mission is to ensure that fundamental principles of human dignity, individual rights and liberties, genuine equality, and access to justice enjoy their rightful, central place in American law.
The energy level and enthusiasm are high among conference attendees, with the sense that their star is on the rise. After eight long years in the executive branch wilderness, the left is poised to retake the White House, through the unstoppable campaign of Barack Obama. (Like the Federalist Society on the right, ACS is a non-partisan, non-profit educational organization. As such, it does not endorse presidential candidates. But as with the Fed Soc, it’s clear where its members’ political sympathies generally reside.)
Speaking of politics, this morning there was a fantastic plenary panel on the presidential selection process, election law, and related topics. If you’re a political junkie, check out our write-up of the discussion, after the jump.
Picking the President: Parties, Primaries, and the Democratic Process (9:00 - 10:45)
(Notable differences between ACS and Fed Soc: ACS not quite as organized as Fed Soc (e.g., on the CLE front — not as many jurisdictions available); everything tends to run a few minutes late at ACS.)
Melody Barnes: Executive VP for Policy, Center for American Progress. Moderator.
Chris Bowers: Co-founder, OpenLeft website. Dressed like a blogger: jeans, sneakers, brown striped polo shirt. Identifies lots of tricky issues. With respect to reform proposals, would superdelegates vote to reduce their own power? What about the primary calendar “race to the bottom”? Iowa and New Hampshire will do whatever it takes to be first. Also notes that timing of primaries / caucuses is determined by the individual states, by law. Problems with caucuses: pressure placed on supporters of unpopular candidates; hours not convenient for all voters.
Joe Trippi: Trippi & Associates. Adviser to many past presidential candidates, including Edwards, Dean, Mondale, Hart, Gephardt, Kennedy. Notes that every time the party tries to “reform” its process, there are unintended consequences that often result in new problems. E.g. Super Tuesday instituted to ensure a nominee w/strong southern support would emerge - and then you got Dukakis as the nominee. Note the network effect here. Dean used the web to raise vast amounts of money and engage supporters. Now that so many more people are involved on the web, the numbers of blogs has increased dramatically, etc., Obama has raised money and engaged supporters at a level much higher than Dean.
Jan Witold Baran: Wiley Rein; leading election lawyer; in private practice since 1979. Preppy look: white slacks, blue blazer, striped oxford, white handkerchief. Charming, funny raconteur.
Election lawyer for Stephen Colbert in 2008. Had to review his scripts to make sure he wasn’t violating campaign finance laws. Election law today is a mess - but at least it keeps election lawyers in business. After I called Sen. McConnell to tell him of the loss in the SCOTUS re: McCain-Feingold, I turned to my despondent associates and said, “We may have lost the case, but we’ve won a livelihood.”
Hendrik Hertzberg: Senior editor and staff writer at the New Yorker; former speechwriter for President Carter; former editor of the New Republic. Seersucker suit; grey and green striped tie. Discusses national popular vote movement, a way to get the president elected by the popular vote without amending the Constitution. States would enter into an interstate compact agreeing that the popular vote winner would get their electoral votes. Advantages: avoids the “wrong winner” problem (this happens about one time out of seven); makes all states relevant (not just battleground states). Let’s give it a try for a few elections, see if we like it. This could happen. Four states have already enacted this bill: Maryland, New Jersey, Hawaii, Illinois. One group pushing for this: Fair Vote.
Pam Karlan: Stanford law professor. The identity of the president matters (red-meat speechifying re: evils of current administration; applause). Attacks the original Constitution, which wasn’t about a revitalized democracy, but exercise of power by elites. We need to change the terms of the debate to shift it away from claims of voter fraud that are motivated by fear of foreigners. References a famous line of Justice Brandeis about people in the past “feared witches, and burned women.” Today, “we fear aliens, and we disenfranchise nuns.” Laughter / applause. The United States is the only advanced democracy where vote counting is a partisan activity. Sure, high-level reforms are important; but let’s look at low-level reforms too, like making sure that individual voters can cast their votes and have them counted. (She is a dynamic, passionate, funny speaker - audience loves her.)
Ron Klain: Executive VP and General Counsel, Revolution LLC. Former White House and DOJ lawyer, O’Melveny & Myers partner, clerk to Justice White. Played by Kevin Spacey in “Recount.” (Spacey doesn’t look much like Klain, but he did get Klain’s voice and manner down.)
Big problem (highlighted in Bush v. Gore): vast disparities in how votes for president are cast and counted. We need to have a national, consistent system for voting for president.
Another big problem: with respect to the major parties, there needs to be more regulation - the parties have enormous power over their own processes. It’s a chaotic situation.
Melody Barnes: Primaries versus caucuses?
Chris Bowers: Let’s get rid of caucuses. The polls are only open for an hour, and there’s no secret ballot. It’s important to have a secret ballot, to allow for voters to support unpopular candidates.
Joe Trippi: No, caucuses have their virtues. Without caucuses, the process will become all about money. Caucuses leave room for insurgent candidates to succeed. Whatever reform we adopt has to leave room for insurgents.
Ron Klain: Caucuses make it harder for people to vote; they have lower rates of voter participation. This is a problem. We need to open the system up more, not close it off.
Melody Barnes: Was the long, drawn-out Democratic primary process a good or bad thing? It increased voter registration, energized the electorate, etc.
Hendrik Hertzberg: Well, does it make sense for this process to suck up so much in the way of time and resources?
Joe Trippi: It may not necessarily be due to primary structure. If you have two strong candidates, this process will run for a long time. There’s nothing wrong with that.
Jan Baran: The Democrats could have winner-take-all primaries. It’s funny if you compare the Democratic and Republican Party rules on the presidential nomination process. The Democratic rules go on and on and on; the Republican rules basically fit on a piece of paper (joking, but making a serious point).
Melody Barnes: Two questions re: national popular vote. First, why would battleground states and/or Republican-leaning states support this proposal? Second, wouldn’t this make elections even more expensive, exacerbating the problems of money in politics?
Hendrik Hertzberg: Well, the money will have to be spread out, reducing the impact. Also, the national popular vote would increase grassroots politicking over big-media politics. As for implementation, battleground states are a minority of states.
Pamela Karlan: So what if it costs more? You get the kind of democracy you pay for. We spend way too little on our electoral process, in terms of technology, training, etc.. A national popular vote would also energize voters and increase participation.
Joe Trippi: If more people were engaged in the electoral process - e.g., through a national popular vote - then more people might contribute small amounts. So this wouldn’t necessarily increase the “money in politics” problem.
Melody Barnes: What about a national holiday for voting?
Chris Bowers: A lot of employers won’t give people this holiday off (since many already don’t give their workers official holidays, like Martin Luther King Jr. Day).
Pamela Karlan: One problem is that people go away on holidays. A second problem is that people forget about the significance of holidays. Memorial Day was started to commemorate the Civil War dead who fought for equality. Now we think about it in terms of when it’s okay to wear white shoes with a suit. Offers bitter but humorous complaints about how screwed up our voting system is. (She’s awesome, quick on her feet, partisan, passionate, hilarious - she should be a talking-head about politics.)
Melody Barnes: Any closing comments?
Chris Bowers: Secret ballots are important. They penalize certain voters. What if you’re shy? What if your boss is at the caucus? What if you’re unpopular in your local community?
Joe Trippi: I went to a caucus in Iowa. It was held at a certain official’s house. You wouldn’t go to that official’s house if you weren’t a supporter of his favored candidate. Caucuses obviously have problems. But I just think that if we reform the system, we need to pay attention to how to allow insurgents to emerge.
Jan Baran: There has been a lot of discussion of (and agreement on) the many problems with our electoral process. But at some point we need to turn to crafting solutions, perhaps in a subsequent discussion. For example, if secretaries of state are going to be removed from the electoral process, who will discharge their functions?
Hendrik Hertzberg: Go to NationalPopularVote.com and FairVote.com, to support this movement.
Pam Karlan: One issue to focus on: people who can’t vote because of criminal convictions (for which they have served their time). We disenfranchise more people today because of these rules than were enfranchised by the Fifteenth Amendment. Other similarly situated nations don’t have this policy. Some major democracies even allow people in prison to vote. This is a huge problem. But here’s some good news: polling data shows a majority of Americans support giving the right to vote to people who have served their time for their crimes. When people who were previously disenfranchised come to vote, they feel like they are rejoining civil society.
Ron Klain: Some points in response to Jan Baran. First, if every other major democracy can run their elections in a rational way, without the involvement of the likes of Katherine Harris, we can too. Second, to the lawyers among you, as members of the bar you need to do whatever you can to vindicate the voting rights of as many Americans as possible.
(Excellent panel. High energy. This is definitely a time for ACS members to be excited.)
Earlier: At the ACS National Convention: Law and Justice Policies in a New Administration
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It is purely absurd to characterize the ACS as the Federalist Society of the left. The Federalist Society is an organization where conservatives, libertarians, centrists and moderates get together for debates. The ideological equivalent of the Federalist Society on the left would be the ABA (although the ABA is obviously far more powerful and has authority over lots of things that it should have no authority over). The average member of the Federalist Society is no more conservative than the average member of the ABA is liberal.
The ACS, by contrast, is an organization for far-left lawyers, including many outright socialists, almost none of whom believes in the existence of a higher power. The average member of the ACS easily falls within the 5% most liberal of the American public. Some even believe in conspiracy-theories (we went to Iraq for the oil, etc.) Perhaps the John Birch Society of the Left is what the ACS is.
Fed Soc
2:15 - No, my friend, ACS was founded explicitly as a left counter to Fed Soc. What you're thinking of is the National Lawyers Guild, the same folks who regularly came out in support of Lynne Stewart and if I remember correctly gave her an award around the same time she was convicted. ACS by contrast may trend a little further left than the DNC, but no more than Fed Soc trends further right than the RNC.
The terms "right" and "left" are used too flippantly. Worse, some on the so-called right (wrongly) assume that belief in a "higher power" is central to the right and that disbelief in God is central to the "left." Hitler was hardly a religious person; MLK Jr. was a reverend.
The fact is, there are (at least) two so-called "rights" and (at least) two so-called "lefts," bothof which are represented in their respective constitutional socieites (i.e., the Federalist Society and ACS).
There are people on the right (or "conservatives" in this country) for (i) moral/social/religious reasons (e.g., anti-abortion, anti-gay rights, anti-evolution, anti-stem cell research, etc.) and (ii) economic reasons (e.g., anti-tax, anti-regulations, etc.). There are folks on the left (or "liberals" in this country) for whom redistribution of wealth is paramount (for moral/religious reasons), and those for whom personal rights and equality are most important (i.e., the "social" liberal). Plenty of Fed Soc members don't play golf, they attended school on loans, they glady pursue careers in government, and their parents don't receive dividend checks from oil companies. Yet an equal number (if not more) of ACS members were born with an endless silver spoon, and while they've hated the Bush years with every fiber of their being, they haven't complained too loudly when mommy or daddy (whose wealth has exploded, hardly taxed) hands them down their 2006 Volvo or takes them on their 100th family ski/beach vacation.
2:15:
First off: "Some even believe in conspiracy-theories (we went to Iraq for the oil, etc.)"
Did you really just say that? Why did we go Iraq? Please don't say to free the Iraqis. Please don't.
Also, please don't hyphenate "conspiracy theories." It's just not right.
Second, can you back up any of your statistics?
Prove that the "average" Fed Soc member is no more conservative than the "average" member of the ABA.
Prove that "[t]he average member of the ACS easily falls within the 5% most liberal of the American public."
I don't have strong views on this topic, but I find it remarkable how frequently people try to back their arguments with pseud-statistics. In fact, 98.2% of the conservative posters misuse statistics as opposed to the 7.4% of liberal posters who do not.
4:59 -- dumbest post ever?
"Prove that the "average" Fed Soc member is no more conservative than the "average" member of the ABA."
reading comprehension much?
and shut the fuck up about Iraq. Though having an another oil-rich American ally in the middle east was contemplated as a significant bonus, that was neither the stated nor covert goal of the invasion. Any person who was paying attention knows this. It certainly hasn't PRODUCED any more oil flowing to our country, has it?
Lat, you should have been at the privacy panel right after, where the panelists made much discussion of the "facebook generation" who parade their lives online.
The ACS chapter at my law school has problems with getting people to stay involved because many of the lefty public interest types view it as too centrist and bland to be meaningful.
Lat = chubby self-hating gay
5:38:
Are you that stupid? Obviously it was a typo that omitted the last part of the post it was echoing (i.e., as the average ACS member is liberal).
Anyway, you seem to hold the facile view that a mission's failure to produce its intended goal somehow proves that that must not have really been its goal. Under that logic, our goal in Vietnam must not have been to defeat the Vietnamese communists because we failed at that. Idiot.
You still haven't answered the question. What was the goal?
Incidentally, I am not sure anyone knows what the goal is anymore--after all, Bush announced in 2003 that we accomplished our goal in Iraq, but yet here we are, FIVE years later, still there. Hmm. I must be a conspiracy theorist. I should bury my head in the sand, ignore the reality of what's going on, and accept the party line coming from the White House. Then, and only then, will I be as enlightened as you.
5:38/2:15:
P.S.-You will never be as smart as I am. You might as well give up. It's in your own best interest.
5:10am has the biggest e-penis I've ever seen. Unfortunately for him, experience dictates that e-penis size is inversely correlated to actual penis size.
The goal of the Iraq invasion was the overthrow of Saddam Hussein.
As a member, I can confirm that the ACS is probably closer to the somewhat mythical "center" of American politics and legal jurisprudence than is the Federalist Society. Further, the ACS is closer to the center than it is to the National Lawyer's Guild, which is far, far removed from the "don't rock the boat too much" ACS.
The Federalist Society attempts to put its talk into legislative and judicial action, but the ACS is mostly talk without concrete follow-up in terms of meaningful action.
5:22 - So what do you get from being an ACS member? Just like to talk but don't like to rock the boat?
4:54:
Interesting theory. It's weird the way the timing worked. Saddam does nothing new from what he has been doing for decades, but yet we decide one day that now is the time to "overthrow" him. That time corresponds directly with a time when we fail miserably to bring to light the perpetrator of 9/11 (i.e., Osama bin Laden).
As for the the oil, I don't know where you live, but I'm paying almost $5 a gallon -- a price that has risen steadily since our invasion of Iraq. Someone's making money off oil.
After eight long years in the executive branch wilderness, the left is poised to retake the White House, through the unstoppable campaign of Barack Obama.
God help us all.
4:54: Your answer is something akin to a mother's response to a child's question "why" with "because." The question is (as 8:40 kind of asks) WHY did we want to overthrow Saddam. Why now when not before September 11? Whatever the reason, it's certainly not to free the Iraqis or because anyone legitimately believed he had WMDs. We were lied to. Plain and simple. If you don't see that, then I feel sorry for you.
4:54: Your answer is something akin to a mother's response to a child's question "why" with "because." The question is (as 8:40 kind of asks) WHY did we want to overthrow Saddam. Why now when not before September 11? Whatever the reason, it's certainly not to free the Iraqis or because anyone legitimately believed he had WMDs. We were lied to. Plain and simple. If you don't see that, then I feel sorry for you.
8:40:
"Saddam does nothing new from what he has been doing for decades, but yet we decide one day that now is the time to "overthrow" him."
I seem to recall that Saddam was talking about a pipeline that adversely impacted US interests right around then. Can't recall the source, though.
Speaking of which--what's wrong with going to war for oil? If military power is going to be decided by petroleum (and keeping effective power equal, fewer boots on the ground certainly requires more gallons per pair), why not make sure that we have enough to influence world events--especially given that at least two of the up-and-coming powers have a record of totalitarian brutality unmatched in human history?
8:43--He finally is.
What is inherently wrong with "going to war for oil"? There are plenty of fronts on which to criticize the Iraq War, but simply complaining that it was "for oil" doesn't cut it.
8:52,
Nothing wrong with going to war for oil, in my view. The problem is that this administration first tried to tie Saddam to 9/11 (a link that has been thoroughly debunked and then forgotten); then cherrypicked intel to support a claim of WMD possession, backed up with theatrics like displaying a vial of Anthrax or whatever at the UN; and all the while failing to counter the blatant perception that this is, in reality, (a) a continuation of Daddy's war; and (b) an occupation of the region with the 2nd largest oil reserves in the world, at a time when supply is dwindling and demand continues to increase.
Had they simply said at the outset, "Saddam is a despot whom we should have deposed in Gulf War I, and we're going to put him on trial and take his oil," and then we had a national debate on those merits, I'd be much more comfortable with this. Instead it feels as though I have been deceived and outright lied to by my own government as it pursued unilateral action. It has shown a disregard and contempt for the people of this country the same way it has shown a disregard and contempt for the international community.
Basically, in the words of Bill Maher, the government failed to do its job here. It failed to spend the time and effort necessary to convince the population that this was a good or at least necessary war.
4:24:
Hitler may be characterized better as being left than right:
1. His party was explicitly a socialist one
2. He believed in greater role of government in people's lives.
3. He believed in socialized medicine
4. He believed in higher taxes for the benefit of all his people.
5. he believed in wealth redistribution (albeit only from certain races/types of people)
6. Nazism attacked lassiz faire capitalism
7. The state was the greatest employer of the people at that time.
8. More interestingly, both the left in America and Hitler believed in characterizing people by race, and promoting certain persons by race above others even when said persons were not as good as those they were promoted ahead of.
9. both believed the Government was an instrument of social change.
About the only connections you can make between Hitler and right-wing thinking is patriotism and militarism--both of which are tenuous at best. Patriotism is a characteristic of all forms of government (witness communism/state worship in USSR/China). Militarism is also tenuous--the military is an arm of the state, so any increased military budget is inherently an increase in state power. Many right-wing thinkers actually believe in the reduction of the armed forces, because, in the end, it is just an arm of the state's power.
"Nothing wrong with war for oil" is a statement unworthy of even the lowliest scumbags on Earth.
10:52,
An interesting thesis, but I think you fall prey to the growing ambiguity of what "right-wing"/"conservative" means these days. By your final statement, you seem to perceive libertarianism, or neo-liberalism, as right-wing. Many people perceive American Conservatism -- white, heterosexual, Protestant, predominantly male, beer-swilling, gun-toting, Bible-thumpers who seek to limit everyone to their faith and code of conduct -- as "right-wing". These two things are not compatible. The former, as you say, wants as little government as possible. The latter is in favor of ever-increasing military budgets, amending the Constitution to reflect the Bible, subjecting everyone to absurd levels of scrutiny at airports (after all, only towelheads and lawbreakers have anything to fear), etc.
I think the binary distinction of "left" and "right" wings is no longer helpful. Unfortunately, there seems to be a lack of new terminology.
Ah yes, I've just remembered:
Given the two scales of "permissiveness" (social and economic), many political analysts have adapted to a two-dimensional grid rather than a one-dimensional spectrum between left/liberal and right/conservative.
On the bottom corner, at 100% permissive on both scales, is libertarianism. At the left corner, at 100% socially permissive and 0% economically permissive, is the "left", or what is commonly perceived as modern liberalism. At the top corner, at 0% permissive on both scales, is Big or Total Government/Authoritarian. And at the right, at 0% socially permissive and 100% economically permissive, is the "right", or modern/American conservatism.
Most people fall somewhere around the "Centrist" portion of the grid. Hitler would of course be right up around the top -- neither left nor right. You're right to point out that fascism had some leftist influences, but you can't deny that it drew huge support from the "far" right.
2:15: dumbest post ever?
people like fed soc underscore the reason why the federalist society is by no means a place where "conservatives, libertarians, centrists and moderates get together for debates". the federalist society's intellectual pretensions are a joke. it's a club for attorneys and law students who are republican and who like to be oppositional to reason and rationality.
Does anyone know when regime change became the US's official stance with respect to Iraq?
12:15,
Gen. Clark said in a speech somewhere (I can dig it up if you'd like) that in 2000 or early 2001, he saw a memo listing Iraq among 7 countries for which the Bush administration planned invasion and regime change.
And what about the Iraq Liberation Act of 1998?
10:21:
"It has shown a disregard and contempt for the people of this country the same way it has shown a disregard and contempt for the international community."
Agreed on all points--the war was pushed through based on fabrications. But, granting momentarily and only for the sake of argument that military action in Iraq was vital to the US's ability to defend itself and its allies in the coming decade, would it justify those fabrications? What if the country would not have been supportive of the Iraq war on the merits? If national security and/or foreign policy depended on maintaining a supply of rapidly dwindling oil, would misleading the public be justifiable or excusable?
11:01:
""Nothing wrong with war for oil" is a statement unworthy of even the lowliest scumbags on Earth."
Well, you're in the right profession to find them. But I agree if what you mean is, "It would be unjust and monstrous to attack a foreign nation and kill innocents just to ensure the comfort profit margins of a bloated mass of greedy assholes." What I doubt is that "war for oil" is as simple as Bush & Co. being greedy or the American public being lazy and immoral (whether or not either is actually true).
2:30,
My answer is no, though I can see why others would say yes.
If national security/foreign policy depend on maintaining oil supplies, it ought to be easy to make that case to the American people. If they don't buy it, and national security then goes down the tubes as a demonstrable effect of failing to secure oil, then the people have gotten what they asked for, just as if they elect a nutjob. I'm not a militant to refuses to comply with something that I'm told is "for my own good," but I need to know why/how it's for my own good.
-10:21
*"...militant [who] refuses...."
2:53-
" . . . but I need to know why/how it's for my own good."
Exactly the kind of check necessary on overreaching. I agree, but still can't get over a dilemma: if the people demand to know, in some instances telling them can have attendant negative effects (jeopardize strategic advantages, reveal sources, etc.), while in others they may not understand the necessity and reject the plan. Certainly the American people are due for getting what they asked for, but in practical terms that puts you back at the suicide pact problem.
Doesn't seem like a good leader could let that happen--but then, on the other horn, using secrecy undermines the people's vigilance if its justified and offers opportunities to the sort of corrupt people that are pulled toward power.
= "if it's justified"
3:13,
In the latter example, I hold that it's the government's job to explain the necessity as far as possible beyond rejection. In the former, I think compromise is necessary. I doubt there was a large-scale element of surprise inherent or necessary in the military campaign against Saddam's Iraq, so the intention could have been stated (and was, under different premises). I agree that we do not need to reveal to the world that we have X model of spyplane which flew over Iraq and is able to take pictures at Y altitude with Z resolution at N speed; but the pictures can be shown. Even if they cannot be shown to the public at large because of security issues, they can be shown to the government officials delegated and entrusted by the people to represent the national interest.
Now, I realize that this comes somewhat in line with Hillary Clinton's argument that based on the evidence she was shown at the time, evidence that is not available to the general public, she was justified in voting to authorize the use of force in Iraq. Quite frankly, I believe her. Were I in the same position, I would likely have joined the majority in making the same vote. The problem is that, even in retrospect, it appears that the executive branch issued misleading information even to the top echelon of the legislature. I believe that, wherever the line may be, those actions crossed it.
Incidentally, I am highly skeptical of the virtue of the War Powers Act. Tacit approval and continued funding are no substitute for a legislative declaration of war.
Again, I agree about the need to inform the people in the latter example and the Congress in the former to prevent the executive from running amok, but the objections almost make themselves: first, that expedition ("divine speed" as Sun Tzu called it) is essential to any military action; and second, congressional staffers being a very chatty lot, that anything released to Congressmen is virtually assured of getting out in the open. Even Plame's identity--a CIA NOC, the very depths of secrecy--was used for leverage. So, while I agree that lying to the most trusted members of the legislature is about as close to a bright-line rule as we can formulate, even that seems problematic.
And I wholly agree regarding the War Powers Act--Congress gets to have its cake and eat it too. They should either jump on board and accept the consequences if a war is justified or never fund it if it's not.
Iraq. Liberation. Act. 1998.
Have you read the Iraq Liberation Act? It provides for various kinds of assistance and support to internal anti-Saddam, pro-Democratic groups, but does not allow the use of military force or any military assets except in training.