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Take, for example, Stand by Your Ad. After all, we’re having a when you point out that a lot of people don’t have the particular conversation about polarized debate, and the notion was there kind of ID that’s being proposed, the public voted against it, as was too much negative advertising and therefore if we force candi- in Minnesota. The real challenge is how to advance something dates personally to state that they’ve approved the ad it will reduce where there is in fact a solution that meets the concerns of both the quantum of negative speech in the political process. And of sides in the debate, as I would argue is the case here. course it didn’t. Period. That’s because very frequently, with the PI LD E S : What is that solution? best of intentions, we design these features with an enormous WALDM AN : Well, you could have a system that registers just about amount of optimism that frankly experience belies. every voter and is less susceptible to fraud. And even on the very Second, there was a discussion of campaign finance and state polarized issue of voter ID, you’re now starting to see proposparties. And I significantly disagree with a couple of the comments als around the country, as in Nevada, where the Democratic made. I don’t think McCain-Feingold weakened the state parties. secretary of state has proposed a system where you have to The truth is that the world had changed to the disadvantage of state have an ID. But if you don’t have it, your photo gets taken at the parties for decades. Party money flowed from the states up to the polls. That has the potential to calm concerns about security federal government. By the time I began practicing in the 1970s without disenfranchising people. that wasn’t true anymore, and critics would say that state parties There are some real solutions. We’re seated at the table with the and election cycles were pumped up with national activists who co-chairs of the president’s new commission on electoral reform were sent to the states to run the state parties and with national [Bauer and Ginsberg]. If we could find a way to take these issues resources that were sent to state parties. McCain-Feingold didn’t out of the partisan crossfire, it’s far more likely to get a solution create that set of circumstances. It may have accelerated the dif- that actually meets the concerns of all parties. ficulties of all of the parties. It certainly created some difficulties P I L D E S : Can we take these issues out of the partisan crossfire, for the national parties by shutting off a main source of financial especially at the national level? support, but it’s very difficult to say in my view that WA L D M A N : Sometimes, when both parties want McCain-Feingold was responsible for it. So, something, whether it’s a grand bargain the plea I’m issuing is for recognizing how between them, or, as in immigration, “Today we woke up often we fail with these institutional where suddenly both parties for and found out that the House design issues. We become terribly entirely different reasons want excited at a particular moment exactly the same thing. is moving toward an immigration by the panic of the day. Not too But it’s important not to package that is probably going to look like many years ago the view was that neglect some of the soft matRepublicans would never ever ters of leadership. The filibusthe Senate’s immigration package. Just a obtain control of the Congress ter rules are the same as they’ve unless they had term limits, and been for a long time, but all of little bit of perspective that we shouldn’t then they gave up term limits once a sudden they’re used so incesstand on the panic button.” they gained control of the Congress. santly that you suddenly need an —Cairncross P I L D E S : Okay, let’s come back to impossible supermajority to do anythe issue that Bob put on the thing in the Congress. There are numertable that the problem is not polarized parties but ous things where the rules are what they are on the nature of debate, discourse, and the like. Monica, is that a paper, but if leaders of both parties aren’t willing to stand up to significant problem now? Do they no longer want to get together their base or exert leadership then the system breaks down. The because they’re spending so much time raising money, or because polarization that we’ve seen is not only a function of the voters or polarization itself makes it politically costly to get together with even the money in the system pulling people, but the difficulty people from the other side of the aisle? that people inside the system have had resisting it. YOUN: People who have spent more time in DC than I can talk about P I L D E S : Ben, you’re the one who opened up the personal side the softer cultural factors. But a lot of the problem does reflect the of polarization. What, in your view, accounts for the situation polarization of the electorate. The electorate will always say, Oh, Michael is describing? yes, we want reasonable, moderate, bipartisan solutions, but when G I N S B E RG : I’m honestly not sure. One of the contrasts with the push comes to shove the electorate will say, What we really want atmosphere in Washington is on the state level, where there are is for our party to trounce the other guys and to win this debate any number of governors from both parties in either unified or that we’re on. And if you take it to the level of the individual voters, divided legislatures who have managed to get an awful lot done the politicians are responding to demand rather than otherwise. in their states. So despite the polarization that we’re talking about, PI LDE S : Michael, you’ve written in particular about the very polarand we’re really talking about it as a national phenomenon, in ized debates on voter identification issues and laws that have been any number of states it’s not true. I’m not really sure what the difemerging over the last two or three years. And what we see there ferences are temperamentally and in the relationships between is that, at least within legislative bodies, the votes on these laws people, and why it is different in Washington from the way it is break down on completely partisan lines, although public opin- in so many state capitals. ion polls generally seem to suggest that three-quarters of voters BAU E R : There’s no question that the tenor of relationships in the endorse these kinds of laws. city has changed. When I came to Washington, DC, full time in WA L D M A N : The voting wars of the past decade are a symptom 1976, there was a very different quality to relationships across rather than a cause of the polarization. There have always been the aisle. Sometimes the rhetoric was still very hard edged, but challenges about who could vote, but there has not been as sharp there was more of a likelihood that you would see the previa red/blue divide as now. The public has broad but not particu- ous combatants walking off the floor of the Senate joking with larly deep views on these matters. On the one hand, there’s broad each other. And that’s very different than the reported period, public support for something like voter ID. On the other hand, post-1994 election, when the Democratic leader of the House

NYU Law Magazine 2013  
NYU Law Magazine 2013  

The annual magazine from NYU School of Law.