new ideas for a new democracy - brennan …about the brennan center for justice the brennan center...

at New York University School of Law

NEW IDEAS FOR A NEW DEMOCRACY

About The Brennan Center for Justice

The Brennan Center for Justice at New York University School of Law is a non-partisan public policy and law institute that focuses on the fundamental issues of democracy and justice. Our work ranges from voting rights to campaign finance reform, from racial justice in criminal law to Constitutional protection in the fight against terrorism. A singular institution — part think tank, part public interest law firm, part advocacy group — the Brennan Center combines scholarship, legislative and legal advocacy, and communications to win meaningful, measurable change in the public sector.

© 2012. This paper is covered by the Creative Commons “Attribution-No Derivs-NonCom-mercial” license (see http://creativecommons.org). It may be reproduced in its entirety as long as the Brennan Center for Justice at NYU School of Law is credited, a link to the Center’s web page is provided, and no charge is imposed. The paper may not be reproduced in part or in altered form, or if a fee is charged, without the Center’s permission. Please let the Center know if you reprint.

We are engaged in a great fight for the future of American democracy.

In 2012, our political system urgently needs repair. Government seems broken, Congress paralyzed. We wince at the sight of billionaires sponsoring presidential candidates like race horses. States have enacted the worst rollback in voting rights since the Jim Crow era. The integrity of our elections is at stake.

That’s the bad news. The good news? Citizens are noticing. They are angry. They are looking for solutions — and leadership.

A passionate commitment to democracy reform must be at the heart of the progressive agenda. We can tap the most exciting and positive trends in our political system as the basis for American renewal.

Our goals: Modernized voter registration, where everyone who is eligible to vote, can vote. A campaign system relying on small donors, not big dollars. A vision of the Constitution as a charter for a vital self-governing democracy. A government that works again.

New ideas for a new democracy.

All of these will require long term, committed effort — thinking, organizing, and acting. Frederick Douglass reminded us, “Power concedes nothing without a struggle.” That’s a fight worth making. We look forward to working with you to renew America.

Michael WaldmanPresidentBrennan Center for Justice at NYU School of Law

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The American Story

The Declaration of Independence could have simply broken with Great Britain, but it did far more. It set out a vision of equal opportunity and political self-governance, one plainly at odds with reality in that revolutionary year. For two centuries our history has been marked by an effort to live out the meaning of that creed — never easily, and always over fierce opposition. In the era of Andrew Jackson in the 1830s, men without property won the right to vote. In the Civil War and after, political rights were won by formerly enslaved men, only to be taken from them in a brutal repression. In the Progressive Era of the early 1900s, we began to use government as an effective tool to counter excessive economic power — assuring that democracy would not be overwhelmed by a new aristocracy. Women won the vote, in effect doubling the franchise. The New Deal not only stretched a safety net through programs like Social Security, but created new institutions to vest political power more widely, by protecting the right to organize unions. And in the civil rights era of the 1950s and 1960s, we sharply expanded the circle of democracy again, with African Americans and then millions of others gaining long-denied legal equality. At each moment, those who opposed wider democracy worried that giving more power to more people would lead to lassitude, a dilution of American character, or a government so bloated and voracious that it would sap entrepreneurial spirit. At every step, they were proven wrong. Each loosening of the vise expanded the nation’s creative and commercial spirit. We learned that our country grows stronger when power is entrusted to more hands. For Americans, democracy isn’t just another in a laundry list of issues. It is the issue — and always has been. But in recent years, our democracy, instead of rising, is in retreat. We boast the world’s oldest representative democracy, yet nearly half

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of all eligible citizens do not vote. Conservatives have spent five decades denigrating government, framing it as “the problem” and not the solution. Nine lobbyists for each Member of Congress crowd the halls of the Capitol, pressing narrow interests over the public interest. The campaign finance system is awash in $5 billion of private money. And the United States Senate has paralyzed itself, adopting an unwritten but unbreakable rule requiring 60 votes for even the most routine of actions. These trends produced the economic cataclysm of 2008. The financial crisis was a political crisis. It was caused by a lack of regulation and oversight, fueled by market fundamentalism. A dysfunctional political system produced economic disaster in the lives of millions. The same dysfunction made it painfully hard to respond to the emergency. Overwhelming private power distorted the outcomes of health care reform and banking regulation. In the fight over the Dodd-Frank law, for example, financial interests spent $1.3 billion to sway Congress. In the 1950s, 8 percent of major bills were filibustered. Now, seven in ten are stonewalled. An utterly unconstitutional supermajority requirement has become the norm. The 2010 elections were marked by low turnout, and the first inkling of a flood of new conservative money into politics. Distressingly, Democrats did little to advance democracy reforms when they had the power to do so. For two years the party controlled the White House and both chambers of Congress. Yet it made no serious effort to enact legislation to expand voting rights, repair presidential public financing, or introduce campaign reform for Congress. Given a chance to change the Senate’s Rule 22 and curb abusive filibusters, lawmakers flinched. Barack Obama — a former constitutional law professor and voting rights lawyer — was the first Democratic president in at least half a century not to push for any major political reform legislation. Yes, a crowded agenda and the financial collapse imposed immediate challenges. But the failure to press for institutional change was a costly lapse.

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Conservatives, by contrast, saw the drive to change democracy’s rules as a central strategic imperative. They understood the topic was not process but power. Whenever they gained control of a political institution, they swiftly mounted an overt, audacious assault on institutions self-governance. In state capitols, as soon as legislative majorities shifted, Republicans rammed through the sharpest reduction in voting rights in decades. In the Supreme Court, the newly consolidated conservative majority swiftly overturned a century of campaign finance law. (In no other area has it been so aggressive.) These moves invariably tilt the terrain of politics and governance away from ordinary citizens. To be clear: This is not simply the clamor of a healthy democracy, the push and pull of normal politics. These trends are not sustainable. Respected centrist political scientists Norman J. Ornstein and Thomas E. Mann sum it up in their new book, “It’s Even Worse Than It Looks.” The Republican Party’s lurch to the right magnifies a polarized party system that seems unable to govern. American institutions depend on compromise, consensus, and checks and balances. Today’s fierce, money-fueled partisan politics have overwhelmed existing structures. We cannot expect American government to right itself automatically. Long-term crises — from climate change to exploding debt — will resist resolution. Competing nations, including those with more authoritarian governing models, will continue to pull ahead. Thomas Friedman recently wrote in The New York Times, quoting conservative scholar Francis Fukuyama:

“When Americans think about the problem of government, it is always about constraining the government and limiting its scope.” That dates back to our founding political culture. The rule of law, regular democratic rotations in power and human rights protections were all put in place to create obstacles to overbearing, overly centralized government. “But we forget,” Fukuyama added, “that government was also created to act and make decisions.”


All this should profoundly worry progressives. Citizens don’t believe government can work — in large part because increasingly they see it as bought and sold by large interests. Without change, corrosive public anger will spread. But in a hopeful sign, public attention has soared even as the public mood has soured. In a poll for Democracy Corps, Stanley Greenberg found a majority of voters intensely frustrated at the influx of secret money that controls our system and undermines our democracy. Citizens, Greenberg argues, will be far more receptive to arguments for government programs only if they first see reform in Washington.

The lesson is plain: If we want to solve our problems, we must fix our systems.

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2012: The Attack on Democracy

Two great trends have converged to threaten the integrity of the 2012 election.

Marching Backward From Selma

Over the past century, our nation expanded the franchise and knocked down barriers to full electoral participation. Now, however, that momentum has abruptly reversed — resulting in the most severe restrictions in voting rights since the Jim Crow era.

17 States passed restrictive voting laws since 2011

Since the beginning of 2011, 17 states passed 22 laws and two executive actions to curb voting rights. In October 2011, the Brennan Center concluded these moves could make it significantly harder for 5 million eligible voters to cast ballots in 2012. Hardest


hit: poor, elderly, minority, and young voters. All this may sharply tilt the political terrain for the 2012 election. Among these moves:

• Restricting voter registration. Maine passed a law eliminating Election Day registration, and Ohio ended its weeklong period of same-day voter registration. Florida, Illinois, and Texas restricted voter registration drives. Florida and Wisconsin passed laws making it harder for people who move to stay registered and vote.

• Demanding government photo ID. Since 2011, eight states imposed strict voter ID requirements. Previously only two states had such laws. To be clear: The problem is not requiring ID per se — but requiring ID that millions of Americans do not have. The Brennan Center’s authoritative study showed that 11 percent of eligible voters lack a government-issued photo ID. One in four African-American eligible citizens do not have a driver’s license. Often these laws are glaringly partisan. In Texas, for example, Governor Rick Perry signed a statute that prohibits use of a University of Texas ID to vote … but allows a concealed weapons permit.

• Requiring proof of citizenship. Three states passed legislation to require proof of citizenship, such as a birth certificate, to register or vote. Seven percent of voting age citizens do not have this proof.

• Reducing early and absentee days. Florida, Georgia, Ohio, Tennessee, and West Virginia cut back on early voting.

• Narrowing voting restoration. Florida and Iowa reversed prior moves to make it easier for citizens with past felony convictions to restore their voting rights, affecting hundreds of thousands. Both states now permanently disenfranchise most citizens with past felony convictions. South Dakota also recently passed a restrictive law.

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The Brennan Center leads the legal and policy response to the wave of anti-voting laws. Recently, the debate has taken a surprising turn, as suppressive measures have hit stiff resistance at the polls and in the courts.

Consider the recent backlash:

• In Maine last November, voters reversed the new law that ended same-day registration.

• In Ohio, more than 300,000 citizens signed petitions, enough to suspend a new law curbing early voting and force a referendum. Now nervous Republicans want to repeal the statute before it goes to the voters. Liberals, in turn, are using the referendum to raise money and spur grassroots energy.

• Florida, meanwhile, imposed onerous penalties and paperwork burdens on volunteers who register voters. The Brennan Center has sued to freeze the law, representing the League of Women Voters, Rock the Vote, and other rights groups. We have won similar lawsuits twice before, and now await a judge’s ruling, expected soon.

• Even on the contentious issue of voter ID, the strictest new laws have slammed into legal barriers. In February, a state judge struck down Wisconsin’s new law. In Missouri, a judge blocked an upcoming ballot measure. Other states have run afoul of the federal Voting Rights Act. The Justice Department has refused to “pre-clear” laws in South Carolina and Texas. Both states have already admitted that hundreds of thousands of voters lack the necessary documents. Not surprisingly, minority voters fare worst. Conservatives insist the Voting Rights Act is itself unconstitutional, and is no longer necessary. They would have a slightly easier time making that argument if Deep South states stopped passing laws that disproportionately disenfranchise minority groups.


We do not know how these fights will end. And other states are moving forward with misguided measures. Pennsylvania and Mississippi just enacted strict new laws, and Minnesotans will consider a referendum in November. No doubt many eligible citizens will find it far harder to cast ballots this year. But the push to trim voting rights, so successful in 2011, has prompted a strong response in 2012. The clash will continue all the way to November.

‘The Year of Big Money’

This is the first presidential campaign of the Citizens United era. It isn’t pretty. Already we see the likelihood of campaign donations, often secret, at levels that dwarf any seen before. The clock turned back not to Watergate, as many feared, but far worse: to the Gilded Age, to the 1896 race in which Mark Hanna dunned major corporations for huge gifts. Corruption will flow inevitably. As the Associated Press reported, 2012 is “The Year of Big Money.” The day Citizens United was decided, the Brennan Center warned in The New York Times that the ruling would be “bigger than Bush v. Gore.” Many campaign pros shrugged cynically, arguing it would make little difference. Just this once, the Chicken Littles were right. Of course, the Justices produced the widest shock when they overturned the decades-old ban on direct corporate spending in campaigns. A less noticed part of the decision proved even more significant, at least in the short run. It seemed to say that as a matter of constitutional law, corporate independent expenditures could never corrupt, or even give the appearance of corruption. Lower courts, interpreting this, gave us Super PACs — able to receive unlimited corporate and individual gifts even if they back just a single federal candidate. A paralyzed Federal Election Commission has allowed absurd levels of entanglement among supposedly “independent” committees and the candidates they love.

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We have entered a truly dystopian world of unregulated campaign spending. Billionaires now sponsor candidates like race horses. Sheldon and Miriam Adelson gave more than $20 million to Winning our Future, the Super PAC supporting Newt Gingrich’s presidential bid. Foster Friess bankrolled much of Rick Santorum’s effort, and mocked campaign laws by standing next to the former senator on primary night rostrums and flying on his campaign plane. Those who claim that Super PACs merely boosted the speech of these “zombie candidates” miss a much bigger point. Only Mitt Romney’s Super PAC spending, at five times the rate of his opponents in some races, kept him going. Twelve donors gave at least $1 million to Romney’s effort. Nine out of ten dollars spent by Romney’s Super PAC went to buy ads attacking his rivals. In all, reported USA Today, “More than $8 out of every $10 collected during the first three months of 2012 by two conservative groups associated with Republican strategist Karl Rove … went to a non-profit branch that does not have to reveal its donors.” The next president may be borne into office on a tide of huge, often secret, campaign funds — funds flatly illegal just a few years ago.

$150M

$120M

$90M

$60M

$30M

0

2006 2008 2010 2012

Source: opensecrets.org, thru May 2nd of election year

The Rise of Independent Spending in Elections

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The Supreme Court has made it hard to fight back in the short term. But here, too, the Brennan Center and its allies are beginning to win victories — holding the line and starting the long drive to change constitutional doctrine. Citizens United was no bolt out of the blue. It was the product of a careful, well-funded, decades-long effort to upend campaign laws. Brad Smith, former chair of the FEC, bragged it was “long-term ideological warfare.” Among the forces behind the litigation are the RNC, the U.S. Chamber of Commerce, the National Committee on Marriage, and the National Right to Life Committee. They have launched an armada of lawsuits, designed to strike down remaining campaign laws. The first battle, then, is in the courts. Pro-democracy legal groups, led by the Brennan Center and the Campaign Legal Center, are engaged in a fierce defensive fight to uphold these laws. In fact, courts have continued to uphold disclosure of campaign funds. The Supreme Court (even before Citizens United) ruled that huge independent expenditures in judicial elections could undermine the appearance of impartiality when judges rule on litigation involving campaign backers. Most notably, the Brennan Center’s advocacy led the Supreme Court to reaffirm the constitutionality of public financing last year, even as it struck down a provision of Arizona’s reform law. Other defensive fights loom. Now, with the wreckage of the campaign finance system increasingly visible, a remarkable revolt of lower court judges has put new pressure on the Court to reconsider Citizens United itself. On the respected Second Circuit Court of Appeals, Judge Guido Calabresi (former Dean of Yale Law School) issued an extraordinary rebuke. He flatly predicted Citizens United’s logic would be reversed. “Whether this will happen through a constitutional amendment or through changes in Supreme Court doctrine, I do not know,” Calabresi wrote. “But it will happen.” More significant still, there is a chance the Supreme Court will reconsider a central holding of Citizens United later this year.

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Montana — recalling its long history of corrupt dominance by copper companies — refused to repeal its century-old law banning corporate campaign spending. Its high court agreed. The U.S. Supreme Court could simply have reversed the Montana ruling. Instead, it froze the law (issuing a “stay”). Justices Ruth Bader Ginsberg and Stephen Breyer issued a highly unusual statement:

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United, make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.

Tell us, the Justices say, about Super PACs. The Brennan Center has organized a flurry of friend-of-the-court briefs to do just that — to argue that the facts matter and the Court should give a full hearing to the Montana case. The Center itself is readying what lawyers call a “Brandeis brief ” — drawing heavily on facts and social science, modeled after the legendary advocacy of the “People’s Lawyer” (later Justice) Louis Brandeis. By tradition, if four Justices seek a full argument the Court would hear the case, perhaps just before Election Day. It would be a high stakes, high profile reconsideration of Citizens United — while that decision’s perverse consequences are in full public view. In voting and in campaign money, we are fighting back — and we are beginning to win victories. But many of the worst new laws will stay in place in November. And as Winston Churchill said, “Wars are not won by evacuations.”


2013: New Ideas For a New Democracy

In 2012, we must fight to protect American democracy: we have no choice. But in 2013 and beyond, that cannot be enough. When the election ends, we must be ready to tap public anger to press for long-term change in the way our government and politics work. How can we turn outrage into action? Yes, we need to organize — lobby better in D.C., rabble-rouse better in our communities. But these are not enough. We need a revitalization of policy goals as well. A compelling reform agenda is critical to persuading cynical citizens that something can actually change the status quo. We can build the next generation of reforms on those hopeful trends of recent years. The small-donor revolution most evident in the 2008 Obama campaign is real, if incomplete. Social media has begun to transform campaigning while lessening costs. Our goal cannot be to “clean up” politics, or to purge money from the system. Rather, all our efforts should be guided by the same principle: boosting the voice of ordinary citizens. Voter Registration Modernization

The first key pro-participation reform is to ensure that every eligible citizen can vote. Voter registration in America has long been a barrier to full participation. At the same time the Old Confederacy snatched away voting rights from its black population in the late 1800s, the North imposed a new system of voter registration. The overt goal was to keep Tammany Hall and other political clubs from corruptly marshaling the Irish and Italian immigrants now passing through Ellis Island and swelling the cities. The underlying purpose was to keep those

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immigrants from voting at all. New York State, for example, required voter registration solely for those living in New York City, not the rest of the largely rural Empire State. These two pushes, against voting by blacks and European immigrants, helped mold the voter registration system now largely still in effect. Today, a century later, America’s voter registration system is ramshackle. It is paper-based, rife with error, and leaves huge numbers of eligible citizens off the rolls. The Pew Center on the States recently concluded that about 24 million registrations — one of eight — are inaccurate or invalid. At the same time, one in four eligible Americans is not registered to vote. The Brennan Center has crafted an innovative proposal to transform the system: Voter Registration Modernization (VRM). Simply, the government takes responsibility to ensure that every eligible voter is on the rolls, using existing computerized lists. This would add up to 65 million eligible citizens to the rolls — permanently. It would cost less (because permanent computerized records are far easier to keep than today’s chaotic piles of paper). And for those who genuinely fear voter fraud, it would help prevent that too. “Mickey Mouse” appears nowhere on the Social Security rolls. How would it work? Under a 2002 federal law, states already have put in place computerized lists of voters. But citizens still must fill out paperwork to get onto that list, and they fall off the rolls when they move or change their address. Instead, VRM uses digital technology to feed names into a comprehensive master list. Voters who find that they are not on the rolls can correct their records by registering at the polls. Individual states can make this change. Better, a uniform national standard would give states financial help for states to make the transition. Other major democracies do it this way. In Canada, Britain, and other similar large nations, governments take responsibility to assure that the rolls are complete. There, voter registration rates hover well above 90 percent of eligible citizens.


The Brennan Center first proposed the reform in 2008. When Congress failed to act, we turned to the states. Quietly, with little partisan rancor, 17 states put in place elements of the plan with great success. States where the Department of Motor Vehicles automatically sends motorist names to the voter list have seen a sharp rise in registrations. In Washington and Kansas, the number of voter registration transactions at DMVs doubled after the system was automated. In South Dakota, the number of registrations at DMVs increased almost eight-fold after automation. A bipartisan coalition continues to gather force. The chief counsels of the McCain and Obama campaigns wrote, “Bringing our voter registration system into the 21st Century must be the priority for improving the election process.” Attorney General Eric Holder recently declared:

Today, the single biggest barrier to voting in this country is our antiquated registration system. According to the Census Bureau, of the 75 million adult citizens who failed to vote in the last presidential election, 60 million of them were not registered and, therefore, not eligible to cast a ballot.

All eligible citizens can and should be automatically registered to vote. The ability to vote is a right — it is not a privilege. Under our current system, many voters must follow cumbersome and needlessly complex voter registration rules. And every election season, state and local officials have to manually process a crush of new applications — most of them handwritten — leaving the system riddled with errors, and, too often, creating chaos at the polls.

Fortunately, modern technology provides a straightforward fix for these problems — if we have the political will to bring our election systems into the 21st century.

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Now the Democratic leaders of Congress have indicated they will propose a voting reform measure — and at its heart will be an ambitious modernization of voter registration. We could couple this with other innovative moves to make voting easier. For example, we vote on the first Tuesday after the first Monday in November only because of a law passed in 1845 … for the convenience of farmers who rode to county seats by horse and wagon. When states have made voting easier, rates rise. In the presidential election of 2008, one in three votes was cast prior to Election Day, a hugely popular trend. Yet Florida, Georgia, and Ohio cut back on early voting days. Restoring early voting periods in these states and enacting early voting in other states could make it easier for millions of citizens to cast votes. A broader measure would expand “no excuse” absentee voting. Twenty-seven states allow any registered voter to request an absentee ballot without requiring a stated reason for his or her desire to vote absentee. (Note that while absentee voting is popular, it is the most susceptible to actual voter fraud.)

Small Donor Matching Funds

Two great trends are at odds in the funding of elections. After Citizens United, of course, we have seen the rush of newly-legal special interest spending. But there is a second, far more hopeful trend: the rise of small donor democracy. In the 2008 campaign, millions of small contributions energized the presidential campaign. We must find a way to encourage this positive trend so it is not overwhelmed by the new reality of special interest cash. Small donors can win the race, if they are given a boost. A new model of public financing focuses on enhancing this existing, exciting trend. It provides multiple matching funds for small contributions. The more candidates can enlist small donors, the larger the amount of assistance they receive.


This approach breaks with earlier reforms. It does not pretend to end the role of private money in elections. It does not seek to curb spending — recognizing that money spent on politics can be a powerful force for public engagement, and that carefully constructed regulatory systems can be easily evaded anyway. It honors the true traditions of American freedom: recognizing that, while a check drawn from Exxon’s corporate treasury is only barely recognizable as speech, a $50 contribution from a middle-class family most certainly can reflect their passionate views. Indeed, the Supreme Court has long approved of public financing as the “more speech” solution to the troubling problems wrought by big money in politics, most recently in the Arizona case the Brennan Center argued in 2011. This new model is on display most visibly in New York City, which has had a multiple matching system since 2001. The city gives candidates six dollars for every dollar contributed by a donor up to $175. Thus a contribution of $100 from a donor becomes $700 for the candidate. (Real money, even in Tribeca.) New York City’s reform has palpably improved politics in the Big Apple. The share of campaign funds coming from small donors has more than doubled since the multiple match system took effect in 2001. It has helped spur real competition. In almost half of all recent Council primary races, at least two candidates spent at or near the maximum amount. Twelve challengers effectively matched the spending of incumbents. Candidates avidly participate. In the most recent election, almost all primary candidates — a whopping 93 percent — financed their campaigns through the City’s program. The Public Advocate, Comptroller, all five Borough Presidents, and all but two of the winning 51 City Council candidates took part. (Michael Bloomberg, of course, is a gargantuan exception. All three of his general election foes participated in the system.) Imagine the impact of such a small-donor match on a presidential campaign, or on a campaign for Congress, especially given the rise of Internet fundraising. We should explore other new

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ways to augment small-donor giving — for example, offering rebates or refundable tax credits for small gifts. These plans could work without the limits on spending that have proved constitutionally controversial and hard to enforce. Now, in the national drive for reform, the most immediate opportunity for a breakthrough comes in one of our largest states, New York. Albany long has been known as one of the most dysfunctional and corrupt state capitols. Voter participation is the nation’s lowest. Governor Andrew Cuomo has proposed enactment of reform — including the small donor public financing system — for statewide offices and the legislature. His call for public financing was the second most popular item in his annual State of the State speech, according to a Siena Poll. A wide coalition urged Cuomo to act, and has rallied to his call. A new force, organized by the Brennan Center, brings together civic, business, philanthropic leaders, and political funders. New York Leadership for Accountable Government (“NY LEAD”) is led by Sean Eldridge, BNY Mellon general counsel Jane Sherburne, and other prominent state leaders. E.J. Dionne recently wrote in The Washington Post:

The beautiful thing is that this approach should answer most of the criticisms offered by those who defend the Citizens United world. I say “should” because advocates of current arrangements will find a way to oppose any reforms. But the New York Revolution, if it happens, would undercut many of their arguments – including their constitutional claims.

The New York reform does not limit anyone’s capacity to participate. It creates incentives for more people to participate. It does not reduce the amount of political speech. It expands the number of people speaking through their contributions. It does not protect incumbents. On the contrary, it opens the way for candidates who might otherwise be driven from the competition by established politicians with access to traditional funding sources.


A similar model could work nationally. A four to one match of in-state contributions below $250, say, would give the vast majority of House and Senate candidates the chance to raise their funds from ordinary citizens, not lobbyists. This approach could work well, too, in a revived presidential public funding system — where online fundraising can be especially powerful. In short, small donor matching funds would give voters a chance to be heard, even in the face of Super PACs and secret money.

Building a Progressive Jurisprudence

Bold policy reform must be supported by a long-term effort to shift legal doctrine. Conservatives recognized that bending the law was a key strategic imperative. They started with academia, supporting foundational scholarship to undergird radical new legal theories. They built up the capacity of public interest law groups and legal foundations to advance those theories through strategic litigation and advocacy. They shaped the conversation about law and public policy through think tanks and policy institutes, focusing on strategic communications to reach key audiences, so their base could understand and support these ideas and policies. They built a powerful legal network through the Federalist Society to identify the movement’s future leaders and move them into positions of influence — starting with judicial clerkships and moving on to positions in government and, most importantly, the judiciary. As the writer David Margolick once observed, the Federalist Society now operates as “a sort of judicial hatchery, spawning and cultivating reliably conservative judges and their reliably conservative law clerks the way state-of-the-art fish farms produce salmon, leaving little to the maddening caprices of nature.” Their strategic, long-term effort has obviously borne fruit. Conservatives have captured the courts. They have profoundly altered the conversation about the law. And their fabricated legal

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theories, once thought beyond the pale, have become mainstream jurisprudence. The Court disregarded a century of legal precedent in the Citizens United case. And we will soon learn whether the litigation over the Affordable Care Act signals a return to the early days of the New Deal, when a conservative court routinely struck down laws advancing the public interest to protect the “economic liberty” of large corporations. Conservatives have long understood the value of investing in legal infrastructure. So, too, progressives must build long term progressive legal capacity — melding strength in constitutional litigation with cutting edge jurisprudence and public intellectual work on behalf of a robust vision of the Constitution as a charter for a thriving democracy. We must develop progressive legal scholarship that has real impact in the academy, in legal practice and jurisprudence, and in the public debate over issues of policy. We must also help to arm the public — which is already on our side — with compelling arguments so it can engage effectively in the national debates on these issues.

• The Brennan Center leads a multi-year drive to roll back Citizens United — the nucleus of an ambitious new initiative to develop and articulate a compelling progressive jurisprudence for the 21st century. We began by convening what The New York Times called an “A list” of First Amendment scholars to begin to chip away at the ruling’s foundations. Many of those scholars have published law review articles pursuing new legal theories. We have enlisted their participation in active cases to advance new arguments before the courts. And we are partnering with the Open Society Foundations to convene social scientists to develop the research we would need to refute the Court’s naïve assumption that expenditures made by supposedly independent Super PACs pose no risk of corruption. Put another way, we are working to “reverse engineer” the legal brief that convinces the Court to overturn Citizens United once and for all.


• Progressives will forge new doctrines not only in the halls of academia but in the active fight for justice. In fact, that is how we have always built it. Thus we should fight for access to the courts. For example, a Brennan Center study showed that six in ten families face foreclosure without a lawyer. That is an appalling failure with devastating consequences.

• And we will insist on a fair and impartial judiciary, working hard to protect the courts from the influx of special interest spending that threatens to overwhelm judicial selection in the states.

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The Brennan Center’s Role

The Brennan Center plays a central, critical role in this drive for a renewed democracy. A think tank and legal advocacy group, we have become a leading progressive constitutional voice. The Center was founded in 1995 by the clerks and family of Supreme Court Justice William J. Brennan, Jr. to uphold his belief that the Constitution is the genius of American law and politics — that the test of our institutions is whether they lead to human dignity, equal opportunity, and democratic participation for all. We protected the voting rights of at least 500,000 citizens in 2008 through our lawsuits, studies, and public education. The Boston Globe called us “indispensable.” Our task force of top computer scientists was a major spur to the abandonment of electronic voting machines with no paper trail throughout the country. Our October 2011 report on voting law changes in the states saturated the media and focused public attention on the attack on voting rights. We litigated key campaign finance cases before the U.S. Supreme Court, including the successful defense of the McCain-Feingold law and the defense of Arizona’s public financing law. In 2012, we play the lead legal role to defend the integrity of our elections. We coordinate the legal strategy to defend voting rights, working with civil rights and voting rights allies. Through lawsuits (currently in Florida, South Carolina, and Texas), advocacy, and research, we will protect voting rights for hundreds of thousands of Americans. We also lead the legal response to Citizens United. Currently, we are engaged in a fierce fight to protect campaign laws — focused most immediately on the challenge to Montana’s campaign law currently before the Supreme Court. Over the long-run, we have launched a long-term legal drive to overturn that misguided decision. Going forward, the Brennan Center will deepen its leadership in three key areas.


• We will focus on answers — on crafting innovative policy proposals that can win support from lawmakers and catalyze action.

• We will focus on persuading the public — building on our tremendously successful efforts to publicize our work. (Our study on voting, for example, was covered as the lead story in The New York Times, cited widely, and changed the national debate.) Abraham Lincoln said it well: “With public sentiment, nothing can fail; without it nothing can succeed. Consequently he who moulds public sentiment, goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.”

• And we will continue to work with our allies to reframe the debate over the Constitution and the courts, and pursue a progressive constitutional vision through academic work, legal capacity building, and public education.

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New and Forthcoming Publications

Voting Law Changes in 2012Wendy R. Weiser and Lawrence Norden

Enhancing Diversity Through Public Financing Elisabeth Genn, Sundeep Iyer, Professor Michael Malbin, and Brendan Glavin

National Survey: Super PACs, Corruption, and DemocracyBrennan Center for Justice

Voter Registration Modernization: A National Reform ProposalWendy R. Weiser and Jonathan Brater Reducing Overclassification Through AccountabilityElizabeth Goitein and David M. Shapiro

Facing Foreclosure Alone: The Continuing Crisis in Legal RepresentationNabanita Pal

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