In the 2012 election, Robert Bauer was President Obama's campaign counsel and Benjamin Ginsberg was the top lawyer for Republican opponent Mitt Romney. Now they have joined forces to co-chair the Presidential Commission on Election Administration, studying the problems elections face. Questions and answers have been edited for length and clarity.
Q: Long lines, unreliable voting machines, disputed ballots: Why don't elections in the United States work better?
Ginsberg:There are 8,000 different jurisdictions that are responsible for putting on some part of our elections. It is a process largely fueled by volunteers. They don't have adequate training in most cases. So uniformity among our elections because of the way our system has been for 200 years is proving pretty difficult.
Bauer:We don't commit nearly the resources that we need to, to the election administration process. Our administrators, who are generally overlooked when things go well and harshly criticized when they don't, by and large have to deal with very tight budgets in which the priority is never very high for the work they have to do.
Q: Do you think voter fraud is a big problem?
Bauer:It is not the problem it's being made out to be. It does not justify the anti-fraud measures that a number of states, at least that's what they're calling them, have been implementing. Obviously Democrats, progressives, if you will, have some significant concern about what really lies behind this. Now, let me say clearly . . . nobody believes that we should have a system that permits widespread fraud to take place. Everybody understands that we need safeguards to ensure that voting is done with integrity and we can have confidence in the outcome of our elections.
. . . But having said that, there isn't any evidence of widespread fraud, and there certainly isn't the sort of evidence that would justify some of what we're seeing in the legislative and political sphere today, which frankly — whether by design or just because it happens that way — results, in our view, in disqualifying voters that should be permitted to cast their ballots and participate in the democratic process.
Ginsberg: I think that there are examples of fraud, and when there are examples of fraud, if you want people to have faith in the system, and to give the appearance that it is a one-person, one-vote system, then some simple measures that are common in everyday life, like showing photo ID, is to me a useful step to take.
Q: Do problems with the way elections are run contribute to the dissatisfaction and disconnect that a lot of Americans feel with politics generally?
Ginsberg:I think polarization and the issues that cause that are probably what happens because of the election results, but not because of the actual process of voting.
Bauer:There are any number of factors that I think that feed into public distrust of government and polarize politics, cripple politics. And certainly how we invite people into their own political process, the extent to which we honor voters on the day in which they should be reigning supreme, is a critical factor in how they think their government thinks of them. If somebody is stuck in a line for seven hours, if the budgets for election administration are insufficient, if thousands of votes go uncounted or are counted incorrectly because of bad machinery or inadequately trained poll workers, then the government and the political process is making a statement to voters, and the statement is: You don't count.
Q: Does the current campaign finance system work?
Ginsberg: No. Look, it's sort of on its head right now. I think that as an ideal we would like to have candidates and the parties that support them to have the loudest voice in the political debate. The upshot of the statutory scheme put in place in the early 1970s is turned on its head, and special interest groups which were supposed to have a reduced voice, according to that original legislation, now have the loudest voice using precisely the sort of money that candidates can't. And that's probably not the way we have diagrammed it.
Bauer: Nope.. . . It's not working the way anybody would rationally think it would work.
Q: Will it take a scandal like Watergate to pass some new system?
Ginsberg: Incumbents who end up making the laws of both parties are enjoying less and less being hit about the head and shoulders by outside money when they have such little voice in the process. We are actually coming to a point where people on both sides of the political aisle are recognizing that the dilapidated state of the parties is something that needs to be corrected.
Bauer: It's gotten very bulky, very complicated, and it's sort of misfiring on all cylinders.
Q: What will you be looking for in the 2014 midterms?
Bauer: We're seeing it now. I mean, we're seeing an extraordinary amount of spending . . . in many cases outside the regulated process.
Ginsberg: Two things are true. No. 1, the state party organizations that used to be responsible for the ground-game for getting people involved in the process and out to vote are deteriorating even further than they were in 2012. And No. 2, I'm struck by the number of super-PACs that have set up to help just individual candidates, that have really taken over from sort of the broad-based Washington outside groups that were there before.
Q: We didn't even have super-PACS in 2010. President Obama first criticized them ... but now he's attending events that super-PACs sponsor.
Bauer: Let's be clear: We're talking now about a set of arrangements that are guaranteed to the participants and people who are setting up these PACs by operation of our constitutional law. People talk about shadow groups operating on the margins of the law. This is now the law. A super-PAC operates not just in the wake of Citizens United but other federal court decisions that permit them to do what they're doing. This is not renegade activity any longer. This is squarely right in the middle of how campaigns are run.
Q: What will we learn in the 2016 election?
Ginsberg:There will be new and different mechanisms for involving small donors in the process — that the Obama campaign did a much better than the Romney campaign did in 2012. I think you'll see an increased emphasis on that. I think you'll continue to see a lot of outside groups but perhaps in new or different forms weighing into the process, doing much more of the ground-game activities than were done before simply because the parties will need the help.
Q: How much money will be spent in 2016?
Ginsberg: The Hillary Clinton supporters already said it was a $1.7 billion effort. I would expect the Republicans will come reasonably close to matching that.
Bauer: I don't know precisely what the numbers are going to be but they're going to be healthy and then if you add to that Ben's legal fees, it's astronomical. (laughter)
Ginsberg: And Bob's litigation fees, which he's clearly going to do, will really push it over the edge.