[Senate Hearing 113-610]
[From the U.S. Government Publishing Office]
S. Hrg. 113-610
COMPILATION OF HEARINGS AND MARKUPS
=======================================================================
HEARINGS AND MARKUPS
BEFORE THE
COMMITTEE ON RULES
AND ADMINISTRATION
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST AND SECOND SESSIONS
__________
FEBRUARY 13, 2013; FEBRUARY 27, 2013; JUNE 12, 2013; JULY 24, 2013;
SEPTEMBER 17, 2013; SEPTEMBER 24, 2013; DECEMBER 11, 2013; JANUARY 29,
2014; FEBRUARY 12, 2014; MARCH 12, 2014; APRIL 9, 2014; APRIL 30, 2014;
MAY 14, 2014; JUNE 25, 2014; JULY 23, 2014; SEPTEMBER 10, 2014;
DECEMBER 3, 2014
__________
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COMMITTEE ON RULES AND ADMINISTRATION
FIRST SESSION
CHARLES E. SCHUMER, New York, Chairman
DIANNE FEINSTEIN, California PAT ROBERTS, Kansas
RICHARD J. DURBIN, Illinois MITCH McCONNELL, Kentucky
PATTY MURRAY, Washington THAD COCHRAN, Mississippi
MARK L. PRYOR, Arkansas SAXBY CHAMBLISS, Georgia
TOM UDALL, New Mexico LAMAR ALEXANDER, Tennessee
MARK R. WARNER, Virginia RICHARD SHELBY, Alabama
PATRICK J. LEAHY, Vermont ROY BLUNT, Missouri
AMY KLOBUCHAR, Minnesota TED CRUZ, Texas
ANGUS S. KING, JR., Maine
Note: Archived webcasts of all hearings and an electronic version of
this report are available at http://rules.senate.gov.
COMMITTEE ON RULES AND ADMINISTRATION
SECOND SESSION
CHARLES E. SCHUMER, New York, Chairman
DIANNE FEINSTEIN, California PAT ROBERTS, Kansas
RICHARD J. DURBIN, Illinois MITCH McCONNELL, Kentucky
MARK L. PRYOR, Arkansas THAD COCHRAN, Mississippi
TOM UDALL, New Mexico SAXBY CHAMBLISS, Georgia
MARK R. WARNER, Virginia LAMAR ALEXANDER, Tennessee
PATRICK J. LEAHY, Vermont RICHARD SHELBY, Alabama
AMY KLOBUCHAR, Minnesota ROY BLUNT, Missouri
ANGUS S. KING, JR., Maine TED CRUZ, Texas
JOHN E. WALSH, Montana
C O N T E N T S
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February 13, 2013
ORGANIZATIONAL MEETING
Opening Statement of:
Hon. Angus S. King, Jr., Acting Chairman, a U.S. Senator from the
State of Maine................................................. 1
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 1
----------
February 27, 2013
BUSINESS MEETING--TO CONSIDER S. RES. 64, AN ORIGINAL RESOLUTION
AUTHORIZING EXPENDITURES BY SENATE COMMITTEES
Opening Statement of:
Hon. Angus S. King, Jr., Acting Chairman, a U.S. Senator from the
State of Maine................................................. 3
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 3
----------
June 12, 2013
HEARING--NOMINATION OF DAVITA VANCE-COOKS, OF VIRGINIA, TO BE THE
PUBLIC PRINTER
Opening Statement of:
Hon. Angus S. King, Jr., Acting Chairman, a U.S. Senator from the
State of Maine................................................. 5
Hon. Pat Roberts, a U.S. Senator from the State of Kansas........ 6
Hon. Mark R. Warner, a U.S. Senator from the State of Virginia... 7
Testimony of:
Mrs. Davita Vance-Cooks, Nominee to be the Public Printer........ 8
Prepared Statements of:
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 18
Mrs. Davita Vance-Cooks, Nominee to be the Public Printer........ 19
Materials Submitted for the Record:
Statement Submitted by American Association of Law Libraries..... 25
Statement Submitted by International Brotherhood of Teamsters.... 27
Questions Submitted for the Record:
Hon. Charles E. Schumer, a U.S. Senator from the State of New
York to Ms. Davita Vance-Cooks, Nominee........................ 28
Hon. Thad Cochran, a U.S. Senator from the State of Mississippi
to Ms. Davita Vance-Cooks, Nominee............................. 36
----------
July 24, 2013
HEARING--NOMINATIONS OF ANN M. RAVEL AND LEE E. GOODMAN
TO BE MEMBERS OF THE FEDERAL ELECTION COMMISSION
Opening Statement of:
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 39
Hon. Pat Roberts, Ranking Member, a U.S. Senator from the State
of Kansas...................................................... 40
Hon. Tom Udall, a U.S. Senator from the State of New Mexico...... 41
Hon. Thad Cochran, a U.S. Senator from the State of Mississippi.. 42
Hon. Roy Blunt, a U.S. Senator from the State of Missouri........ 42
Testimony of:
Mr. Lee E. Goodman, Nominee, Federal Election Commission, (VA)... 43
Ms. Ann M. Ravel, Nominee, Federal Election Commission, (CA)..... 44
Prepared Statements of:
Mr. Lee E. Goodman, Nominee, Federal Election Commission, (VA)... 56
Ms. Ann Miller Ravel, Nominee, Federal Election Commission, (CA). 59
Materials Submitted for the Record:
``The FEC's lame-duck overreach,'' Submitted by Senator Tom Udall 64
``Sabotage at the Election Commission,'' Submitted by Senator Tom
Udall.......................................................... 65
Statement submitted by California Political Attorneys Association 66
Statement submitted by Catherine C. Sprinkles.................... 68
Statement submitted by Congressman Michael M. Honda.............. 70
Statement submitted by Congressman Robert Hurt................... 71
Statement submitted by Congresswoman Zoe Lofgren................. 72
Statement submitted by David E. Anderson......................... 73
Statement submitted by Lynn Montgomery........................... 74
Statement submitted by Mayor Don Gage, Gilroy (CA)............... 75
Statement submitted by Michael C. Genest......................... 76
Statement submitted by Richard E. Wiley.......................... 78
Statement submitted by Ronald D. Rotunda......................... 79
Statement submitted by Sean Eskovitz............................. 81
Statement submitted by Thomas M. Wolf............................ 82
Questions Submitted for the Record:
Hon. Pat Roberts, Ranking Member, a U.S. Senator from the State
of Kansas to Lee E. Goodman, Nominee........................... 84
----------
July 24, 2013
BUSINESS MEETING--TO CONSIDER THE NOMINATION OF DAVITA VANCE-COOKS TO
BE PUBLIC PRINTER AND S. 375
Opening Statement of:
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 86
Hon. Thad Cochran, a U.S. Senator from the State of Mississippi.. 86
Hon. Pat Roberts, Ranking Member, a U.S. Senator from the State
of Kansas...................................................... 87
----------
September 17, 2013
BUSINESS MEETING--TO CONSIDER THE NOMINATIONS OF ANN M. RAVEL AND LEE
E. GOODMAN TO BE MEMBERS OF THE FEDERAL ELECTION COMMISSION AND S. RES.
229
Opening Statement of:
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 89
----------
September 24, 2013
BUSINESS MEETING--TO CONSIDER S. RES. 253, AN ORIGINAL RESOLUTION
AUTHORIZING THE EXPENDITURES OF SENATE COMMITTEES
Opening Statement of:
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 91
----------
December 11, 2013
HEARING--NOMINATIONS OF THOMAS HICKS AND MYRNA PEREZ TO BE MEMBERS OF
THE ELECTION ASSISTANCE COMMISSION
Opening Statement of:
Hon. Angus. S. King, Acting Chairman, a U.S. Senator from the
State of Maine................................................. 93
Hon. Pat Roberts, Ranking Member, a U.S. Senator from the State
of Kansas...................................................... 95
Testimony of:
Mr. Thomas Hicks, Nominee, Election Assistance Commission, (VA).. 97
Ms. Myrna Perez, Nominee, Election Assistance Commission, (TX)... 99
Prepared Statements of:
Mr. Thomas Hicks, Nominee, Election Assistance Commission, (VA).. 108
Ms. Myrna Perez, Nominee, Election Assistance Commission, (TX)... 111
Materials Submitted for the Record:
Statement submitted by America's Congressional Black Caucus...... 115
Statement submitted by Democrats Abroad.......................... 116
Statement submitted by Mexican American Legal Defense and
Educational Fund............................................... 119
Statement submitted by National Hispanic Leadership Agenda....... 121
----------
January 29, 2014
HEARING--SENTRI ACT (S. 1728) IMPROVING VOTER REGISTRATION
AND VOTING OPPORTUNITIES FOR MILITARY AND OVERSEAS VOTERS
Opening Statement of:
Hon. Angus. S. King, Acting Chairman, a U.S. Senator from the
State of Maine................................................. 123
Hon. Pat Roberts, Ranking Member, a U.S. Senator from the State
of Kansas...................................................... 124
Hon. Roy Blunt, a U.S. Senator from the State of Missouri........ 125
Testimony of:
Mr. Matt Boehmer, Director, Federal Voting Assistance Program,
U.S. Department of Defense, Washington (DC).................... 126
Mr. Kevin Kennedy, Director and General Counsel, Wisconsin
Government Accountability Board, Madison (WI).................. 127
Mr. Don Palmer, Secretary of the Board, Virginia Board of
Elections, Richmond (VA)....................................... 129
Hon. John Cornyn, a U.S. Senator from the State of Texas......... 138
Prepared Statements of:
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 143
Hon. Roy Blunt, a U.S. Senator from the State of Missouri........ 145
Mr. Matt Boehmer, Director, Federal Voting Assistance Program,
U.S. Department of Defense, Washington (DC).................... 147
Mr. Kevin Kennedy, Director and General Counsel, Wisconsin
Government Accountability Board, Madison (WI).................. 152
Mr. Don Palmer, Secretary of the Board, Virginia Board of
Elections, Richmond (VA)....................................... 158
Hon. John Cornyn, a U.S. Senator from the State of Texas......... 163
Materials Submitted for the Record:
Statement submitted by Hon. Richard Durbin, a U.S. Senator from
the State of Illinois.......................................... 166
Statement submitted by American Veterans......................... 168
Statement submitted by Association of the United States Navy..... 169
Statement submitted by Common Cause.............................. 170
Statement submitted by National Association for Uniformed
Services....................................................... 172
Statement submitted by Verified Voting........................... 173
Questions Submitted for the Record:
Hon. Amy Klobuchar, a U.S. Senator from the State of Minnesota to
Mr. Don Palmer................................................. 175
Hon. Amy Klobuchar, a U.S. Senator from the State of Minnesota to
Mr. Kevin Kennedy.............................................. 178
Hon. Amy Klobuchar, a U.S. Senator from the State of Minnesota to
Mr. Matt Boehmer............................................... 179
Hon. Patty Murray, a U.S. Senator from the State of Washington to
Mr. Matt Boehmer............................................... 180
Hon. Pat Roberts, Ranking Member, a U.S. Senator from the State
of Kansas to Mr. Matt Boehmer.................................. 183
----------
February 12, 2014
HEARING--BIPARTISAN SUPPORT FOR IMPROVING U.S. ELECTIONS:
AN OVERVIEW FROM THE PRESIDENTIAL COMMISSION ON ELECTION ADMINISTRATION
Opening Statement of:
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 186
Hon. Pat Roberts, Ranking Member, a U.S. Senator from the State
of Kansas...................................................... 188
Hon. Amy Klobuchar, a U.S. Senator from the State of Minnesota... 188
Testimony of:
Mr. Robert F. Bauer, Co-Chair, The Presidential Commission on
Election Administration, Washington (DC)....................... 190
Mr. Benjamin L. Ginsberg, Co-Chair, The Presidential Commission
on Election Administration, Washington (DC).................... 192
Prepared Statements of:
Mr. Robert F. Bauer, Co-Chair, The Presidential Commission on
Election Administration, Washington (DC)....................... 208
Hon. Richard J. Durbin, a U.S. Senator from the State of Illinois 212
Mr. Benjamin L. Ginsberg, Co-Chair, The Presidential Commission
on Election Administration, Washington (DC).................... 214
Materials Submitted for the Record:
Statement submitted by Verified Voting........................... 219
----------
March 12, 2014
HEARING--ELECTION ADMINISTRATION: INNOVATION, ADMINISTRATIVE
IMPROVEMENTS AND COST SAVINGS
Opening Statement of:
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 220
Hon. Pat Roberts, Ranking Member, a U.S. Senator from the State
of Kansas...................................................... 221
Hon. Mark R. Warner, a U.S. Senator from the State of Virginia... 222
Testimony of:
Hon. Barbara Boxer, a U.S. Senator from the State of California.. 223
Hon. Chris Coons, a U.S. Senator from the State of Delaware...... 225
Ms. Linda Lamone, Administrator of Elections, Maryland State
Board of Elections, Annapolis (MD)............................. 228
Ms. Tammy Patrick, Federal Compliance Officer, Maricopa County
Elections, Phoenix (AZ)........................................ 230
Ms. Cameron Quinn, General Registrar, Fairfax County, Fairfax
(VA)........................................................... 232
Prepared Statements of:
Ms. Linda Lamone, Administrator of Elections, Maryland State
Board of Elections, Annapolis (MD)............................. 238
Ms. Tammy Patrick, Federal Compliance Officer, Maricopa County
Elections, Phoenix (AZ)........................................ 243
Ms. Cameron Quinn, General Registrar, Fairfax County, Fairfax
(VA)........................................................... 247
Materials Submitted for the Record:
Statement submitted by Senator Bill Nelson, a U.S. Senator from
the State of Florida........................................... 262
Statement submitted by Ms. Tammy Patrick, Federal Compliance
Officer, Maricopa County Elections (AZ)........................ 264
Questions Submitted for the Record:
Hon. Pat Roberts, Ranking Member, a U.S. Senator from the State
of Kansas to Committee witnesses............................... 266
----------
April 9, 2014
HEARING--ELECTION ADMINISTRATION: MAKING VOTER ROLLS MORE COMPLETE AND
MORE ACCURATE
Opening Statement of:
Hon. John Walsh, Acting Chairman, a U.S. Senator from the State
of Montana..................................................... 270
Hon. Pat Roberts, Ranking Member, a U.S. Senator from the State
of Kansas...................................................... 271
Testimony of:
Ms. Elaine Manlove, Delaware State Election Commissioner, Dover
(DE)........................................................... 272
Mr. John Lindback, Executive Director, Electronic Registration
Information Center, Washington (DC)............................ 274
Mr. Judd Choate, Director of Elections, Denver (CO).............. 275
Mr. Christopher Thomas, Director of Elections, Lansing (MI)...... 277
Prepared Statements of:
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 286
Ms. Elaine Manlove, Delaware State Election Commissioner, Dover
(DE)........................................................... 288
Mr. John Lindback, Executive Director, Electronic Registration
Information Center, Washington (DC)............................ 293
Mr. Judd Choate, Director of Elections, Denver (CO).............. 300
Mr. Christopher Thomas, Director of Elections, Lansing (MI)...... 304
----------
April 9, 2014
BUSINESS MEETING--TO CONSIDER THE NOMINATIONS OF THOMAS HICKS AND MYRNA
PEREZ TO BE MEMBERS OF THE ELECTION ASSISTANCE COMMISSION AND S. 1728,
S. 1937, S. 1947, AND S. 2197
Opening Statement of:
Hon. John Walsh, Acting Chairman, a U.S. Senator from the State
of Montana..................................................... 319
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 320
Hon. Pat Roberts, Ranking Member, a U.S. Senator from the State
of Kansas...................................................... 320
----------
April 30, 2014
HEARING--DOLLARS AND SENSE: HOW UNDISCLOSED MONEY
AND POST-McCUTCHEON CAMPAIGN FINANCE WILL AFFECT THE 2014 ELECTION AND
BEYOND
Opening Statement of:
Hon. Angus S. King, Acting Chairman, a U.S. Senator from the
State of Maine................................................. 324
Hon. Pat Roberts, Ranking Member, a U.S. Senator from the State
of Kansas...................................................... 326
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 327
Testimony of:
Hon. John Paul Stevens, Associated Justice (Ret.), United States
Supreme Court.................................................. 329
Opening Statement of:
Hon. Ted Cruz, a U.S. Senator from the State of Texas............ 331
Hon. Tom Udall, a U.S. Senator from the State of New Mexico...... 333
Hon. John Walsh, a U.S. Senator from the State of Montana........ 335
Testimony of:
Mr. Donald F. McGahn, Attorney, Washington (DC).................. 336
Mr. Norman J. Ornstein, American Enterprise Institute, Washington
(DC)........................................................... 338
Mr. Trevor Potter, President and General Counsel, Campaign Legal
Center, Washington (DC)........................................ 341
Hon. Ann Ravel, Vice Chair, Federal Election Commission,
Washington (DC)................................................ 342
Mr. Neil Reiff, Attorney, Washington (DC)........................ 344
Prepared Statements of:
Hon. John Paul Stevens, Associated Justice (Ret.), United States
Supreme Court.................................................. 361
Mr. Donald F. McGahn, Attorney, and Mr. Neil Reiff, Attorney,
Washington (DC)................................................ 368
Mr. Norman J. Ornstein, American Enterprise Institute, Washington
(DC)........................................................... 377
Mr. Trevor Potter, President and General Counsel, Campaign Legal
Center, Washington (DC)........................................ 384
Hon. Ann Ravel, Vice Chair, Federal Election Commission,
Washington (DC)................................................ 391
Materials Submitted for the Record:
``A Decade of McCain-Feingold: The Good, the Bad, and the Ugly,''
Submitted by Mr. Donald F. McGahn and Mr. Neil Reiff........... 397
``Brief of United States Senators Sheldon Whitehouse and John
McCain as Amici Curiae in Support of Respondents,'' Submitted
by Senator Sheldon Whitehouse.................................. 402
Statement submitted by American Bar Association.................. 433
Statement submitted by Center for Competitive Politics........... 441
Statement submitted by Democracy 21.............................. 459
Statement submitted by Demos..................................... 476
Statement submitted by Free Speech for People.................... 492
Statement submitted by Fund for the Republic..................... 496
Statement submitted by National Association for the Advancement
of Colored People.............................................. 499
Statement submitted by Public Campaign........................... 501
Statement submitted by Public Citizen............................ 505
Statement submitted by Senator Sheldon Whitehouse................ 521
Statement submitted by Stetson Law............................... 524
Statement submitted by Sunlight Foundation....................... 579
Statement submitted by Wesleyan Media Project.................... 583
Questions Submitted for the Record:
Hon. Angus S. King, a U.S. Senator from the State of Maine to Ann
Ravel, Vice Chair, Federal Election Commission................. 590
----------
May 14, 2014
HEARING--COLLECTION, ANALYSIS AND USE OF ELECTIONS DATA: A MEASURED
APPROACH TO IMPROVING ELECTION ADMINISTRATION
Opening Statement of:
Hon. Amy Klobuchar, a U.S. Senator from the State of Minnesota... 592
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 592
Testimony of:
Ms. Heather K. Gerken, Yale Law School, New Haven (CT)........... 596
Mr. Charles Stewart III, Massachusetts Institute of Technology,
Cambridge (MA)................................................. 597
Mr. Kevin J. Kennedy, Director and General Counsel, Wisconsin
Government Accountability Board, Madison (WI).................. 599
Mr. David J. Becker, Director, Election Initiatives, The Pew
Charitable Trusts, Washington (DC)............................. 600
Mr. Justin Riemer, Former Deputy Secretary, Virginia State Board
of Elections, Richmond (VA).................................... 603
Prepared Statements of:
Ms. Heather K. Gerken, Yale Law School, New Haven (CT)........... 621
Mr. Charles Stewart III, Massachusetts Institute of Technology,
Cambridge (MA)................................................. 635
Mr. Kevin J. Kennedy, Director and General Counsel, Wisconsin
Government Accountability Board, Madison (WI).................. 651
Mr. David J. Becker, Director, Election Initiatives, The Pew
Charitable Trusts, Washington (DC)............................. 659
Mr. Justin Riemer, Former Deputy Secretary, Virginia Board of
Elections, Richmond (VA)....................................... 662
Materials Submitted for the Record:
Statement submitted by FairVote.................................. 669
Statement submitted by Doug Chapin............................... 678
Statement submitted by IBM Center for The Business of Government. 683
Statement submitted by Republican National Lawyers Association... 727
Statement submitted by The PEW Charitable Trusts................. 766
Statement submitted by Verified Voting........................... 778
----------
June 25, 2014
HEARING--ELECTION ADMINISTRATION: EXAMINING HOW EARLY
AND ABSENTEE VOTING CAN BENEFIT CITIZENS AND ADMINISTRATORS
Opening Statement of:
Hon. John Walsh, Acting Chairman, a U.S. Senator from the State
of Montana..................................................... 780
Testimony of:
The Honorable Kate Brown, Secretary of State, State of Oregon,
Salem (OR)..................................................... 781
Dr. John C. Fortier, Director, Democracy Project, Bipartisan
Policy Center, Washington (DC)................................. 782
Mr. Harvard Lomax, Registrar of Voters (Retired), Clark County
Election Department, Las Vegas (NV)............................ 784
Ms. Rhonda Whiting, Chairman of the Board, Western Native Voice,
Missoula (MT).................................................. 786
Prepared Statements of:
The Honorable Kate Brown, Secretary of State, State of Oregon,
Salem (OR)..................................................... 791
Dr. John C. Fortier, Director, Democracy Project, Bipartisan
Policy Center, Washington (DC)................................. 795
Mr. Harvard Lomax, Registrar of Voters (Retired), Clark County
Election Department, Las Vegas (NV)............................ 800
Ms. Rhonda Whiting, Chairman of the Board, Western Native Voice,
Missoula (MT).................................................. 805
Materials Submitted for the Record:
Statement Submitted by Ms. Wendy Weiser, Brennan Center for
Justice........................................................ 808
Statement Submitted by Common Cause.............................. 813
Statement Submitted by Douglas Chapin............................ 854
Statement Submitted by Julie Alexander........................... 857
Statement Submitted by Kim Wyman, Washington Secretary of State.. 858
Questions Submitted for the Record:
Hon. Charles E. Schumer, a U.S. Senator from the State of New
York to Dr. John C. Fortier, Director, Democracy Project,
Bipartisan Policy Center....................................... 860
Hon. Charles E. Schumer, a U.S. Senator from the State of New
York to Mr. Harvard Lomax, Registrar of Voters (Retired), Clark
County Election Department..................................... 861
----------
July 23, 2014
HEARING--THE DISCLOSE ACT (S. 2516) AND THE NEED FOR EXPANDED PUBLIC
DISCLOSURE OF FUNDS RAISED AND SPENT TO INFLUENCE FEDERAL ELECTIONS
Opening Statement of:
Hon. Angus S. King, Acting Chairman, a U.S. Senator from the
State of Maine................................................. 863
Hon. Pat Roberts, Ranking Member, a U.S. Senator from the State
of Kansas...................................................... 865
Hon. Mitch McConnell, a U.S. Senator from the State of Kentucky.. 867
Hon. Tom Udall, a U.S. Senator from the State of New Mexico...... 870
Testimony of:
Hon. Sheldon Whitehouse, a U.S. Senator from the State of Rhode
Island......................................................... 872
Ms. Heather K. Gerken, Yale Law School, New Haven (CT)........... 874
Mr. Bradley A. Smith, Chairman, Center for Competitive Politics,
Alexandria (VA)................................................ 876
Prepared Statements of:
Mr. Daniel Tokaji, Moritz College of Law, Ohio State University,
Columbus (OH).................................................. 901
Ms. Heather K. Gerken, Yale Law School, New Haven (CT)........... 907
Mr. Bradley A. Smith, Chairman, Center for Competitive Politics,
Alexandria (VA)................................................ 916
Materials Submitted for the Record:
Statement submitted by American Civil Liberties Union............ 936
Statement submitted by Chamber of Commerce....................... 941
Statement submitted by Common Cause.............................. 943
Statement submitted by Democracy 21.............................. 948
Statement submitted by Scholars Strategy Network................. 950
Statement submitted by The Campaign Legal Center................. 951
----------
September 10, 2014
HEARING--NOMINATIONS OF MATTHEW MASTERSON AND CHRISTY McCORMICK TO BE
MEMBERS OF THE ELECTION ASSISTANCE COMMISSION
Opening Statement of:
Hon. Angus S. King, Acting Chairman, a U.S. Senator from the
State of Maine................................................. 957
Testimony of:
Mr. Matthew V. Masterson, Nominee, Election Assistance
Commission, (OH)............................................... 959
Ms. Christy A. McCormick, Nominee, Election Assistance
Commission, (VA)............................................... 960
Prepared Statements of:
Hon. Pat Roberts, Ranking Member, a U.S. Senator from the State
of Kansas...................................................... 968
Mr. Matthew V. Masterson, Nominee, Election Assistance
Commission, (OH)............................................... 969
Ms. Christy A. McCormick, Nominee, Election Assistance
Commission, (VA)............................................... 972
Materials Submitted for the Record:
Statement submitted by NALEO Educational Fund.................... 975
Statement submitted by National Disability Rights Network........ 978
Statement submitted by The Leadership Conference on Civil and
Human Rights................................................... 980
Statement submitted by Verified Voting........................... 982
----------
December 3, 2014
BUSINESS MEETING--TO CONSIDER THE NOMINATIONS OF MATTHEW MASTERSON AND
CHRISTY MCCORMICK TO BE MEMBERS OF THE ELECTION ASSISTANCE COMMISSION
Opening Statement of:
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 983
Materials Submitted for the Record:
Statement submitted by The Leadership Conference on Civil and
Human Rights................................................... 986
ORGANIZATIONAL MEETING
----------
WEDNESDAY, FEBRUARY 13, 2013
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 10:04 a.m., in
Room SR-301, Russell Senate Office Building, Hon. Angus King,
presiding.
Present: Senator King.
Staff Present: Jean Bordewich, Staff Director; Kelly Fado,
Deputy Staff Director, Professional Staff; Lynden Armstrong,
Chief Clerk; Mary Suit Jones, Republican Staff Director; Shaun
Parkin, Republican Deputy Staff Director; Paul Vinovich,
Republican Chief Shaun Parkin, Republican Deputy Staff
Director; Matt McGowan, Professional Staff; Rachel Creviston,
Republican Professional Staff; and Adam Topper, Rooms
Coordinator.
OPENING STATEMENT OF SENATOR ANGUS S. KING Jr.
Senator King. The Rules Committee will come to order. This
is our first meeting of the 113th Congress, the Committee's
organizational meeting. Welcome. There are two items on the
agenda--the adoption of the Committee Rules of Procedure and an
original resolution which will fund the Rules Committee during
the 113th Congress. We currently do not have a quorum needed to
adopt the Committee rules and approve the Committee budget. So,
the Committee is recessed, subject to the call of the chair. We
will let your office know when we will meet, hopefully off of
the floor this afternoon, to vote on the items.
[Whereupon, at 10:06 a.m., the Committee was recessed to
the call of the Chair.]
[The Committee reconvened on Wednesday, February 27, 2013
at 12:21 p.m., in Room S-219, United States Capitol, Hon.
Charles E. Schumer, Chairman of the Committee, presiding.]
Present: Senators Schumer, Feinstein, Durbin, Pryor, Udall,
Warner, Leahy, Klobuchar, King, Roberts, Chambliss, Shelby, and
Blunt.
OPENING STATEMENT OF SENATOR SCHUMER
Chairman Schumer. The Rules Committee will come to order
for the continuation of its organizational meeting. Good
afternoon, thank you for coming. I would like to warmly welcome
our new Ranking Member, Senator Roberts and our new Members,
Senator Amy Klobuchar, Senator Angus King, and Senator Ted
Cruz. We have a legislative quorum of 10 members, so let's take
our two votes. Is there any further debate? I move we adopt by
voice the Committee Rules of Procedure--is there a second?
Senator Leahy. Second
Chairman Schumer. All in favor, say ``aye''
[a chorus of ``ayes.'']
Chairman Schumer. All opposed, say ``nay''
[No response.]
Chairman Schumer. The ``ayes'' have it. Now, I move that we
adopt by voice vote the 7-month authorizing resolution for the
Rules Committee budget. Is there a second?
Senator Feinstein. Second
Chairman Schumer. All in favor, say ``aye.''
[Chorus of ``ayes.'']
Chairman Schumer. All opposed, ``nay.''
[No response.]
Chairman Schumer. The ``ayes'' have it. Since there is no
further business, the Committee is adjourned and we thank you
for making this meeting our most successful yet.
[Whereupon, at 12:24 p.m., the Committee was adjourned.]0
BUSINESS MEETING--TO CONSIDER S. RES..
64, AN ORIGINAL RESOLUTION AUTHORIZING EXPENDITURES BY SENATE
COMMITTEES
----------
WEDNESDAY, FEBRUARY 27, 2013
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 10:00 a.m., in
Room SR-301, Russell Senate Office Building, Hon. Angus S.
King, presiding.
Present: Senator King.
Staff Present: Jean Bordewich, Staff Director; Kelly Fado,
Deputy Staff Director, Professional Staff; Lynden Armstrong,
Chief Clerk; Mary Suit Jones, Republican Staff Director; Shaun
Parkin, Republican Deputy Staff Director; Paul Vinovich,
Republican Chief; Shaun Parkin, Republican Deputy Staff
Director; Matt McGowan, Professional Staff; Rachel Creviston,
Republican Professional Staff; and Adam Topper, Staff
Assistant.
[Committee gavel.]
Senator King. The Rules Committee will come to order for
the mark-up on its omnibus funding resolution for the
Committees. Welcome. We currently do not have a quorum needed
to pass the resolution, so the Committee is recessed, subject
to the call of the chair.
[Committee gavel.]
The Committee reconvened on Thursday, February 28, 2013 at
3:00 p.m., in Room S-216, United States Capitol Building, Hon.
Charles E. Schumer, Chairman of the Committee, presiding.
Present: Senators Schumer, Feinstein, Durbin, Pryor,
Warner, Leahy, Klobuchar, King, Roberts, Chambliss, Shelby,
Blunt, and Cruz.
[Committee gavel.]
OPENING STATEMENT OF SENATOR SCHUMER
Chairman Schumer. The Rules Committee will come to order
for the continuation of the mark-up on its omnibus funding
resolution for Committees. You were all sent the resolution
yesterday. We have a legislative quorum of ten members, so
let's take our vote. Is there any further debate?
[A chorus of no.]
Chairman Schumer. I move that we adopt by voice vote the 7-
month omnibus authorizing resolution for Senate Committees. Is
there a second?
Senator Feinstein. Second.
Chairman Schumer. All in favor say ``aye.''
[A chorus of ``ayes.'']
Chairman Schumer. All opposed?
[No response.]
Chairman Schumer. The ayes have it. Since there is no
further business, the Committee is adjourned.
[Committee gavel.]0
HEARING--NOMINATION OF DAVITA VANCE-COOKS,
OF VIRGINIA,
TO BE THE PUBLIC PRINTER
----------
WEDNESDAY, JUNE 12, 2013
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 10:06 a.m., in
Room SR-301, Russell Senate Office Building, Hon. Angus S.
King, Jr., presiding.
Present: Senators King, Klobuchar, and Roberts.
Staff Present: Jean Bordewich, Staff Director; Kelly Fado,
Deputy Staff Director; Stacy Ettinger, Chief Counsel; Ellen
Zeng, Elections Counsel; Sharon Larimer, Assistant to the Staff
Director; Abbie Sorrendino, Professional Staff; Nicole Tatz,
Legislative Correspondent; Lynden Armstrong, Chief Clerk;
Matthew McGowan, Professional Staff; Adam Topper, Staff
Assistant; Mary Suit Jones, Republican Staff Director; Shaun
Parkin, Republican Deputy Staff Director; Paul Vinovich,
Republican Chief Counsel; Sarah Little, Communications
Director; Trish Kent, Republican Professional Staff; and Rachel
Creviston, Republican Professional Staff.
OPENING STATEMENT OF SENATOR KING
Senator King. The United States Senate Committee on Rules
and Administration shall come to order. Good morning.
On today's agenda is the consideration of the nomination of
Davita Vance-Cooks for the position of Public Printer of the
United States Government Printing Office.
Chairman Schumer is unable to attend today's hearing and
asked that I extend his congratulations to Mrs. Vance-Cooks on
her nomination. Without objection, I ask that his statement be
submitted for the record.
[The prepared statement of Chairman Schumer was submitted
for the record:]
Senator King. I would also like to welcome Mrs. Vance-
Cooks' husband, Cliff Cooks, who is joining us here today.
The Government Printing Office opened its doors the day
that Abraham Lincoln was inaugurated as the 16th President of
the United States in 1861. For more than 150 years, the GPO has
played an instrumental role in keeping the nation informed and
providing permanent public access to government information.
GPO publishes the nation's important government information in
both digital and print forms. It publishes official documents
for Congress and the executive branch, created and maintains
the Federal Digital System, an enormous Web site and database
of digital documents, and also supports the Federal Depository
Libraries all over the country.
A broad operational review of the GPO conducted by the
National Academy of Public Administration in 2012 concluded
that under the guidance of the Acting Public Printer, our
nominee here today, GPO has made significant progress in
rebooting the agency from a print-based organization to one
that focuses on publishing content in many forms.
Mrs. Vance-Cooks came to us with a distinguished 34-year
career that includes 25 years in the private sector and nine
years of management and executive experience at the GPO itself.
As Acting Public Printer, she has worked to modernize the
process of making information available to the public in
digital as well as print form.
Senator, welcome.
On May 9, the President nominated Mrs. Vance-Cooks to be
the Public Printer. If confirmed, she would be the 27th person
to hold this position, the first African American, and the
first woman. As Deputy Public Printer, she assumed the
responsibilities of Acting Public Printer on January 4, 2012.
On behalf of the committee, I want to welcome Mrs. Vance-
Cooks to today's hearing and we look forward to her testimony.
Senator Roberts, do you have any opening remarks?
OPENING STATEMENT OF SENATOR ROBERTS
Senator Roberts. Yes, Mr. Chairman.
This will be somewhat repetitive, but it deserves repeating
because of the qualifications of Mrs. Vance-Cooks, and I would
like to welcome her here today. Thank you for paying a very
nice courtesy call to my office prior to this hearing and thank
you for your willingness to serve as the Public Printer.
I want to formally acknowledge the great work that the GPO
does. They produce all of the printing and information products
ordered by Congress and Federal agencies, which is the
equivalent of nearly $700 million of work annually. Praise is
due to the good work of the 1,900 GPO employees who work
tirelessly on behalf of Congress.
And I want to commend the implementation of technology that
has made the GPO more efficient, has allowed the agency to
function with fewer resources, publish more information, make
it more accessible to the public, and still meet the increasing
demands of Congress on a day-to-day basis--no small job. I also
want to stress the importance of innovation as the GPO
continues to make the shift from print to digital documents.
The committee looks forward to hearing Mrs. Vance-Cooks'
remarks and her vision for the future of the GPO. She is
eminently qualified, and I will hold my remarks in the effort
to expedite this confirmation, which she deserves.
Senator King. Thank you, Senator.
Senator Warner is a member of this committee and one of the
Senators from Mrs. Vance-Cooks' home State of Virginia. He had
hoped to introduce the nominee here today but is tied up in
another committee markup, which is the order of the day around
here this week. I would like to read part of his introductory
statement and, without objection, ask that the statement in its
entirety be included in the committee record at this point.
[The prepared statement of Senator Warner was included for
the record:]
Senator Warner. I wish I could be there in person to
introduce fellow Virginian and President Obama's nominee to be
Public Printer, Mrs. Davita Vance-Cooks.
Davita is exceptionally well-qualified to carry out the
duties and responsibilities of Public Printer. She brings more
than 30 years of private sector and federal government
experience to her current role as Deputy Public Printer. Davita
joined the Government Printing Office in 2004 and has held a
succession of senior management positions. In one of her
previous roles as Deputy Managing Director of Consumer
Services, Davita oversaw the award of a $50 million contract
for the production of the 2010 census materials. This was one
of the largest procurements in the agency's history.
Additionally, as Managing Director of GPO's Publications
and Information Sales business unit, Davita led GPO's effort to
partner with Google to sell federal publications in an eBook
format, launched an award winning government book blog,
modernized GPO's customer contact center, and oversaw the
renovation of the agency's retail bookstore in Washington, D.C.
Recognized for her hard work and successful efforts, Davita
was named GPO's Chief of Staff in January 2011, where she
continued to have a positive impact on the organization. In
only eleven months she created and implemented an agency-wide
strategic performance plan while managing the day-to-day
operations, budgets, and performance goals of the executive
offices. In December of that same year she was once again
promoted--this time to the appointed position of Deputy Public
Printer.
As a former businessman, I'd also like to highlight
Davita's success in the private sector. Before joining GPO she
served as General Manager of HTH Worldwide Insurance Services.
Before that she was Senior Vice-President of Operations for
NYLCare MidAtlantic Health Plan. Prior to that, she worked for
several Blue Cross/Blue Shield plans, where she was Director of
Customer Service and Claims, Director of Membership and
Billing, and Director of Market Research and Product
Development. Her wide range of experience as a business
executive should not be overlooked.
Virginians are proud to call Davita one of their own. She
is a member of the Northern Virginia Alumnae Chapter of Delta
Sigma Theta, Inc., a national sorority that will celebrate its
centennial this year. She and her husband Clifford Cooks are
active members of the Antioch Baptist Church in Fairfax
Station, and they are the proud parents of Chandra and
Christopher, both of whom graduated from James Madison
University. For the past several years, while serving as a
senior manager at GPO, Davita has coached girls basketball for
the Springfield Youth Club and the Braddock Road Youth Club in
Fairfax County. Cliff is an assistant coach for the boys JV
basketball team at Bishop Ireton High School. Despite Davita's
nomination, it's a tough week in the Cooks household--Davita is
a Spurs fan and Cliff roots for the Heat.
I would like to extend a warm welcome to Davita and her
family, who have so much to be proud of. I enthusiastically
support Davita, and urge the committee to favorably report her
nomination and look forward to working towards her swift
confirmation on the Senate floor.
Senator King. Senator Warner's statement says, in part,
``Mr. Chairman, I wish I could be there in person to introduce
fellow Virginian and President Obama's nominee to be the Public
Printer, Mrs. Davita Vance-Cooks. Davita is exceptionally well
qualified to carry out the duties and responsibilities of the
Public Printer. She brings more than 30 years of private sector
and Federal Government experience to her current role as Deputy
Public Printer.
``Virginians are proud to call Davita one of their own. She
is a member of the Northern Virginia Alumni Chapter of Delta
Sigma Theta, the national sorority that will celebrate its
centennial this year. She and her husband, Clifford Cooks, are
active members of the Antioch Baptist Church in Fairfax Station
and they are proud parents of Chandra and Christopher, both of
whom graduated from James Madison University.
``For the past several years, while serving as a Senior
Manager at the GPO, Davita has coached girls' basketball for
the Springfield Youth Club and the Braddock Road Youth Club in
Fairfax County. Cliff is an assistant coach for the boys' JV
basketball team at Bishop Ireton High School.
``Despite Davita's nomination, it has been a rather tough
week in the Cooks' family household because Davita is a Spurs
fan, and I understand that Cliff roots for the Heat. So last
night must have taken--been some satisfying for you, Davita.
``I would like to extend a warm welcome to Davita and her
family''--these are the words of Senator Warner--``who have so
much to be proud of. I enthusiastically support Davita and urge
the committee to favorably report her nomination and look
forward to working towards her swift confirmation on the Senate
floor.''
Now, Mrs. Vance-Cooks, please make your statement to the
committee.
STATEMENT OF DAVITA VANCE-COOKS, OF VIRGINIA, NOMINATED TO BE
THE PUBLIC PRINTER
Mrs. Vance-Cooks. Thank you. Mr. Chairman and members of
the Committee on Rules and Administration, I am honored to be
here this morning to assist in your consideration of my
nomination by President Barack Obama to be the Public Printer
of the United States Government Printing Office.
Before I begin, I would like to formally introduce you to
Clifford Cooks, my husband and my best friend of 33 years, back
there.
In the interest of time, I will briefly summarize my
prepared remarks, which have been submitted for the record.
I am currently the Deputy Public Printer and I have been
serving in the capacity of Acting Public Printer for the past
18 months. For 152 years, GPO has faithfully carried out its
mission of keeping America informed about the business of the
government, first by traditional printing, and today by digital
technology.
Clearly, the GPO is no longer just a printing business.
Today, we operate in an environment that is dominated by
constantly evolving technology, the proliferation of content
available through multiple formats and devices, rapidly
changing and demanding stakeholder expectations, and
significant financial budget pressure. In response, we have
repositioned our core business of ink on paper to emphasize the
development of a digital information platform for the delivery
of a growing variety of options to access government
information.
As I have detailed in my prepared statement, my educational
background, which includes an MBA from Columbia University, 25
years of private sector experience with progressively
challenging leadership roles, nine years of GPO management and
executive business experience, all have prepared me to lead
this wonderful agency at this particular time, in this
environment, and during this digital transformation.
My career at the GPO began when I directly managed our
nationwide print procurement business, and then I became
responsible for the print and E-commerce information sales
operation, and later, I oversaw the administrative business
units. I facilitated GPO's entry into the E-book market with
the establishment of E-book partnerships with Google and other
providers. And as the Chief of Staff, I guided the conduct of
an agency-wide buyout, resulting in a restructured workforce
and the lowest staffing level at GPO in more than a century,
but still maintaining a high level of customer service.
This background has provided me with a broad knowledge of
GPO's mission, our customers, our partners, operations,
capabilities, employees, and organizational culture. If
confirmed by the Senate, I will not need a learning curve to
lead the agency as the Public Printer.
Furthermore, during my year-and-a-half as the Acting Public
Printer, the collaboration between management and employees has
resulted in a number of achievements, and I am so very proud of
those achievements. I would like to list some of them for the
record.
We completed fiscal year 2012 with positive net income and
reduced our overhead costs to 2008 levels. To date, in fiscal
year 2013, we have managed to absorb the effects of the
sequestration while continuing to carry out the program of
doing more with less. We developed a five-year strategic plan.
We pioneered new mobile apps for the delivery of government
information to mobile devices, one of which won a Digital
Government Service Award. We expanded the scope of information
made available by the Federal Digital System. We opened a
Secure Credential Operations site for the increased demand of
secure cards. We delivered the work supporting the 2013
Presidential Inauguration. We added new professional
certifications for our plant operations so we are now
designated as Best in Class. And we initiated the Federal
Depository Library State Forecasting Project to ensure the
digital future of the program in collaboration with the
Depository Libraries. And most importantly, the National
Academy of Public Administration, after a ten-month
Congressionally mandated study, validated our mission and our
program of digital transition.
So in developing and carrying out our plans for moving the
GPO forward, I have been and will always be committed to
consulting with Congress and our stakeholders, and I have an
unwavering belief in the vital mission of GPO, which is to keep
America informed. And I will ensure that GPO stays dedicated
and true to that mission.
So in closing, I would like to state for the record that I
have the deepest admiration and respect for the GPO employees.
They are the agency's strongest and most important assets. They
are the nation's experts in the production and dissemination of
the information that is needed by the public. And for the past
nine years, I have been fortunate to work with the dedicated
and talented men and women of the GPO, and I look forward to
continuing to work with them if I am confirmed as their Public
Printer.
Mr. Chairman and members of the Committee on Rules and
Administration, thank you again for the opportunity to be here
today. I must admit, I am absolutely thrilled about this
opportunity, and this concludes my prepared statement and I am
prepared to answer any questions that you may have.
[The prepared statement of Mrs. Vance-Cooks Submitted for
the Record:]
Senator King. Thank you.
Before we get to questions, Senator Klobuchar has joined
us. Senator, did you have an opening statement of any kind?
Senator Klobuchar. No, I think we should just move on to
questions, but I welcome the nominee and congratulate her and
her family. Thank you, and thank you for your good work.
Senator King. Mrs. Vance-Cooks, I understand that one of
the first things you did when you took over as Acting Public
Printer was hold Town Hall meetings with your staff. The
feedback we got was very positive from that, that they
appreciated your transparency and your willingness to listen.
You made it through, as you noted in your comments, the
sequester pressure, and I wondered how you view the next couple
of years. As you know, the sequester is not a one-year event,
but unless it is modified, it is in the law for the next nine
years. How do you see that relating to your ability to carry
out your mission?
Mrs. Vance-Cooks. First of all, thank you for acknowledging
the Town Hall meetings. I made it an objective to have Town
Hall meetings around the clock every quarter with the
employees, and since we are, in fact, a 24-hour by seven
operation, we have Town Hall meetings that go around the clock,
and it is very important for us to communicate with our
employees to let them know where we are going and why we are
moving in that direction. I have found that when we communicate
with our employees, we tend to get better buy-in, and that buy-
in allows us to make hard decisions, but decisions which they,
in fact, understand, and that leads me to the point about the
sequester.
In February, I had a series of Town Hall meetings to talk
to them about what I called the Perfect Storm. At that point,
it was the sequestration; it was the Continuing Resolution and
the debt ceiling. And I explained to them that it is important
for us to manage our expenses very carefully. And I wanted them
to understand that when we manage our expenses, is to make sure
that we are a viable operation. So they understand why we have
to cut back on training sometimes or why we have to cut back on
some of the technological investments that had been planned for
the future.
The way in which I understand, or the way in which we have
planned to make it through the next few years with the
sequestration is to make sure we understand our expenses. Our
expenses are at the lowest level right now. We have reached all
the way down to the 2008 level. But it is what I call targeted
expenses. It is not a slash across the board. It is making sure
that we target the right areas, and we will continue to do
that.
We also will continue to try to increase our revenue. Our
financial model is set up so that only 16 percent of our budget
is due to appropriations. The 84 percent balance, we actually
earn it. And so that earned revenue is what we will target to
make sure that we can ride through the sequester. That earned
revenue will come from procurement business and will come from
other types of information, such as secure cards and passports.
So the balance between our expenses and managing our
revenue will allow us to go further. But I want to stress that
it is targeted revenue opportunities and it is targeted expense
opportunities, and it is also making sure that we collaborate
with our employees so that they understand our vision.
Senator King. Thank you. The Depository Library Program,
the localized program that helps ensure public access to
Federal Government documents, is an old and tried and true
program. However, how does that program fit in, in your vision,
with digital access? Do we need Federal Depository Libraries if
everybody can access all the information from their living
room?
Mrs. Vance-Cooks. Well, first of all, we definitely need
Federal Depository Libraries. That is a guaranteed issue. Yes.
In fact, you know that we have 1,200 Depository Libraries
spread throughout the United States. We need it because of the
fact that not everyone is on digital. Not everyone is on a
digital platform. And the libraries are needed to serve the
underserved, those individuals who do not have access to
digital content. And I know for a fact that we have a lot of
pockets like that.
Now, I will admit that the FDLP Program is moving towards a
digital platform. We need to help them manage the digital
platform. They have identified a number of issues, such as they
want improved access online. They want enhanced catalog
records. They want the information to be easily discoverable.
They want us to digitize more historical content. They want
more flexibility in terms of how we manage the collection
according to Title 44. And they want preservation.
We hear them. We agree with them. And that is why, back in
2012, we initiated a study called the State Forecasting
Project. It is a collaborative project with all of the
libraries, and we asked them, how can we as GPO best help to
serve you? How can we help you to serve your patrons, whether
digital or whether tangible? We have been working on all of the
analysis, all of the recommendations, and we intend to present
a National Federal Digital Program Plan by October to address
all of those issues.
Senator King. Thank you.
Senator Roberts.
Senator Roberts. Well, I thank the Acting Chairman and I
thank you, Mrs. Vance-Cooks. What is the appropriate title
after your confirmation here? I have got Chief Executive
Officer. CEO seems a little--Madam CEO does not quite get it.
What do you take as the proper title?
[Laughter.]
Mrs. Vance-Cooks. Well, you know, I like Madam CEO.
[Laughter.]
Senator Klobuchar. I would like the record to reflect I
also think that is a good title, Senator Roberts.
[Laughter.]
Senator Roberts. It is now four-to-zero. I can understand
that. Okay.
Well, Madam CEO, you have already responded to about three
of my questions and they were asked in a very timely fashion by
our Acting Chairman. I have got a question. In your view, what
is the appropriate mix of agency printing that should be
performed by GPO and will you continue to support a robust
private sector printing industry?
Mrs. Vance-Cooks. Today, we have an in-plant operation and
we have a print procurement operation. Our in-plant operation
primarily handles Congressional products and inherently
government information, such as the Federal Register. Our Print
Procurement Program handles the Federal agency printing. And,
as you know, a number of Federal agencies come to us for
printing. We know that approximately 70 percent of the mix that
comes in, or 70 percent of the work orders that come in, are
for the Federal agencies.
That work is sent out to our nationwide network of
businesses that are printers. And we know that when we send
that out, about 80 percent of those printers who actually get
business from us are employees or employers with fewer than 20
employees. So, basically, we are funding the small business
network for printers.
I believe strongly in the Print Procurement Program because
it is a way to leverage a tremendous amount of buying
capability to get competitive prices. It is a competitive bid
process, and it is a longstanding partnership between the
government and private sector. And, in fact, when I started at
GPO, I started managing that Print Procurement Program, so I am
very much familiar with it. It will continue. It generates
about--well, in fiscal year 2012, it generated about $350
million in revenue for all these private businesses.
This is, however, an area that I am very concerned about
for the sequester, because when the sequestration hit, the
Federal agencies, of course, the first thing they looked at
were different line items about which they can cut. And one of
the things they probably will start to cut will be printing,
and that is, of course, because they might think about how they
can put things online or they might think that they may not
need as many orders.
So this is what I am calling the rippling effect. When they
submit fewer orders to us, we, in turn, will submit fewer
orders to the private businesses. So we are watching that very
carefully. Right now, since the sequester has come on board, we
are seeing about an eight to ten percent decline in printing on
that side.
Senator Roberts. When you make those adjustments, you are
talking about the small business community and your average was
22 people or less. Obviously, if you have an eight to ten
percent cut, that is going to hit, if it is across the board.
How are you going to manage that? Are you going to pick and
choose, or----
Mrs. Vance-Cooks. No. This is a competitive bid process.
Right now, we have about 16,000 vendors on our master list, and
so when an order comes in, we then send it out to all the
businesses to bid. They actually bid on the particular order.
And then we give it to the best possible price.
Senator Roberts. All right. I appreciate that.
You have got about one million--well, not about--you have
got exactly 1,431,600 square feet of total space in four
buildings over there. I have been there on several occasions,
but not lately, so I have got to get back over. And about
437,200 square feet of that space is classified as being
unusable. We are talking about pipes, stairwells, mechanical
rooms, et cetera, et cetera. With costs that are significantly
rising to maintain the aging buildings, what kind of advice can
you give us on getting the best economic value out of the
usable space while continuing to meet the core needs of the GPO
and the Congress?
Mrs. Vance-Cooks. We are leasing that space. In fact, I
always tease Andy Sherman, sitting behind me, and Jim Bradley
on the other side, because I call them my RE/MAX salesmen
because of the fact that we had that----
Senator Roberts. You do not have a reverse mortgage or
anything like that, do you?
Mrs. Vance-Cooks. No, I do not. No.
[Laughter.]
Mrs. Vance-Cooks. No. But we do lease the space. In fact,
we have four renters now and they contribute about $1.7 million
annually, and that funding is used to defray the cost of
operating the building.
We are in the process of looking for additional renters.
Again, I will admit, the sequestration has sort of slowed that
process. But that is what we intend to do.
Senator Roberts. I appreciate that, and the red light is
blinking, Mr. Chairman, so let us move on.
Senator King. Senator Klobuchar.
Senator Klobuchar. Very good. Again, welcome, and as
Senator Roberts is now aware, the Public Printer is the Chief
Executive Officer----
Mrs. Vance-Cooks. Right.
Senator Klobuchar. --of the GPO, and in this capacity, you
are responsible, or will be responsible for leading and
managing the organization. I know you have had significant
experience in both the public and private sector. Could you
talk a little bit about how your experiences in the private
sector will inform your decision making as the CEO of the GPO?
Mrs. Vance-Cooks. Thank you for that CEO title. Thank you
very much.
My private sector experience actually has given me a unique
perspective on the organizational challenges of the GPO. In my
private sector experience, I specialized in operations
management, change management, and strategic planning. When I
became the Chief of Staff, I immediately took my strategic
planning emphasis and brought it to the GPO. I have developed a
very coordinated, very standard process for strategic planning.
We developed a five-year strategic plan several years ago.
It is a dynamic plan. By that, I mean we continually update it.
It is updated every year to go to the next year. On top of
that, every six months, we have a report that identifies where
we stand in terms of our operational plans. And every year, at
the end of that year, we identify what we have accomplished.
All of that information is open and transparent and it is on
the web so you can see exactly what our plans are going
forward.
In terms of operations management from the private sector,
I have brought that here because I understand how to manage. I
can manage and I can strategically plan. And then my change
management experience is also helpful because this is an
organization that is going through a lot of transformation and
we need that kind of skill set to make sure that we understand
where we are going and get the buy-in.
Senator Klobuchar. As you talk about change, I know that
Senator King asked you some questions, which I thought were
very good, on the new, the digital, and referenced that. Are
you doing anything with social media, with Facebook, Twitter?
Mrs. Vance-Cooks. Absolutely. We have a Facebook. We have
YouTube, which is half Pinterest, which I think is kind of
interesting, okay. And we believe in social media. Social media
is the best way to get out our name. It is the best way to
communicate what we do. It is also a reference to the fact that
there is a new generation coming and this is how they
communicate. This is how they learn about us. So we cannot wait
for them to come to us. Social media allows us to go to them.
And we also have a Twitter account.
Senator Klobuchar. Have you ever thought that the name
should be changed?
Mrs. Vance-Cooks. Absolutely.
Senator Klobuchar. From Government Printing Office----
Mrs. Vance-Cooks. To Government Publishing Office.
Senator Klobuchar. Well, there we go. We have a goal now.
But it does seem like that might be a good idea, because it is
hard for you to say on social media, to use the Government
Printing Office when you are giving them digital access.
Mrs. Vance-Cooks. Exactly. And the Government Printing
Office title, the name is a great name full of history. It is
steeped in tradition. But it is limiting. It makes people think
that the only thing we do is printing.
Senator Klobuchar. Exactly.
Mrs. Vance-Cooks. We actually publish digital information.
So we are a digital publisher. We have E-commerce through E-
books. We create mobile apps.
Senator Klobuchar. And then people will stop saying, well,
why do you have to exist when you are the Printing Office?
Mrs. Vance-Cooks. Exactly.
Senator Klobuchar. Okay.
Mrs. Vance-Cooks. Thank you.
Senator Klobuchar. We have a goal.
Mrs. Vance-Cooks. All right. Thank you.
Senator Klobuchar. You talked with Senator King about the
importance of the depositories, even in the digital age, a
place for everyone to access the records, and I found out,
which I did not know, getting ready for this, that the
University of Minnesota is the Regional----
Mrs. Vance-Cooks. That is right.
Senator Klobuchar [continuing]. Depository Library for
Minnesota and South Dakota and Michigan, housing more than a
million volumes of government publications. Can you talk about
how that works? I know you mentioned, was it 1,200----
Mrs. Vance-Cooks. There are 1,200 Depository Libraries----
Senator Klobuchar. But these are regional ones, and so what
role do they play and how do you work with the universities?
Mrs. Vance-Cooks. Okay. The regional role--the Regional
Libraries are responsible for coordinating with the Depository
Libraries, and I think of the Regional and the Depository
Libraries as actually collaborating with each other to make
sure that they have the right documents on file, to make sure
that they are not duplicating efforts, and to make sure that
they serve the patrons.
So in terms of how they work with the universities, it is
the same thing. What do the universities want? Let us make sure
we have the information that they need.
And I would also like to say that with all of these
libraries that cover a number of areas, it is academic, it is
law, it is public. It goes on and on.
Senator Klobuchar. Okay. The National Academy of Public
Administration report found that, based on a conservative set
of assumptions, the GPO only has the cash necessary to offset
operating losses and fund modest investment for another seven
years. Do you agree with that assessment and what do you think
can be done with your business background to ensure a brighter
financial future?
Mrs. Vance-Cooks. I do not agree with that assessment. I
believe that the GPO has a bright future and a good financial
strong future and we will be here for a very long time. We earn
our revenue, as I said, with the 84 percent. It comes from
passports, and we are in the process of coordinating with the
State Department for the next generation of passports. I think
most people know that we have been working with the State
Department since the 1920s on our passports. We leverage that
expertise with our passports to create secure credentials. We
consider the secure credential market to be a very large market
opportunity for us.
Our print procurement is also an area of opportunity for us
because we believe that we should do more market outreach to
the Federal agencies to let them know that we are here to
assist them with their printing needs because printing will not
go away. Tangible print is here and it will always remain, it
is just that there will be a balance between tangible print and
online.
Now, because I mentioned earlier that we intend to
reposition our core business, by that, I mean the traditional
printing, we are looking for market niche opportunities to
support it. So that would be print on demand. That would be E-
books. That would be all of those type of market opportunities
to bolster the revenue to move forward.
I think we are going to be just fine.
Senator Klobuchar. Okay. Well, I would love to work with
you on the name change----
Mrs. Vance-Cooks. Well, thank you.
Senator Klobuchar [continuing] Because I just realized you
can still be the CEO of the GPO--
Mrs. Vance-Cooks. That is right.
Senator Klobuchar [continuing]. Because it would be the
Publications Office. That would make it easier for everyone in
Washington to keep the same acronym.
Mrs. Vance-Cooks. And it does not bother our letterhead too
much.
Senator Klobuchar. Yes. Then we save money and we can keep
the old letterhead. Okay. We are ready to work on it.
Mrs. Vance-Cooks. All right.
Senator Klobuchar. Thank you.
Mrs. Vance-Cooks. Thank you.
Senator King. Thank you, Senator Klobuchar.
Before closing the hearing, there is so much talk these
days in terms of bad news, particularly sometimes focusing on
Federal employees. I just want to take this occasion to thank
you and the people at GPO that go to work every day quietly, do
their job in a quality manner serving the public in responsive
and creative ways and just thank you for that, and please
convey the thanks of this committee to your loyal and creative
and good serving employees. Would you do that for me?
Mrs. Vance-Cooks. I will. Thank you very much.
Senator King. Thank you. On behalf of the Rules Committee,
I want to thank you for your testimony this morning.
The record on this hearing will remain open for five
business days for additional comments. There may be post-
hearing questions submitted in writing for the nominee to
answer. We plan to consider this nomination in a timely manner,
hopefully within the next few days, so the Senate can have an
opportunity to confirm Mrs. Vance-Cooks as the next Public
Printer in an expeditious manner.
With no further business to come before the committee, the
committee is adjourned.
Mrs. Vance-Cooks. Thank you, sir.
[Whereupon, at 10:39 a.m., the committee was adjourned.]
APPENDIX MATERIAL SUBMITTED
----------
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
HEARING--NOMINATIONS OF ANN M. RAVEL AND LEE E. GOODMAN TO BE MEMBERS.
OF THE FEDERAL ELECTION COMMISSION
----------
WEDNESDAY, JULY 24, 2013
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 10:06 a.m., in
Room SR-301, Russell Senate Office Building, Hon. Charles E.
Schumer, Chairman of the committee, presiding.
Present: Senators Schumer, Durbin, Udall, King, Roberts,
Cochran, and Blunt.
Staff Present: Jean Bordewich, Staff Director; Kelly Fado,
Deputy Staff Director; Stacy Ettinger, Chief Counsel; Ellen
Zeng, Elections Counsel; Sharon Larimer, Assistant to the Staff
Director; Abbie Sorrendino, Professional Staff; Nicole Tatz,
Legislative Correspondent; Matthew McGowan, Professional Staff;
Adam Topper, Staff Assistant; Mary Suit Jones, Republican Staff
Director; Shaun Parkin, Republican Deputy Staff Director; Paul
Vinovich, Republican Chief Counsel; Sarah Little,
Communications Director; Trish Kent, Republican Professional
Staff; and Rachel Creviston, Republican Professional Staff.
OPENING STATEMENT OF CHAIRMAN SCHUMER
Chairman Schumer. Now we will begin for two nominees to the
Federal Election Commission. I ask the witnesses to please take
their seats at the table, and on today's agenda is the
consideration of nominations of Mr. Lee Goodman and Ms. Ann
Ravel to be members of the FEC, Federal Election Commission.
Before anyone suggests that I might have overlooked the common
courtesy of ladies before gentlemen, we have introduced the
nominees in alphabetical order for simplicity's sake. So, Mr.
Goodman and Ms. Ravel, I would very much like to welcome you
here today, congratulate you on your nomination.
Mr. Goodman, I understand you are accompanied by your
family members, your wife, Paige Pippin, your daughter, Piper,
and your son, Kemper. Maybe they can stand so we can say hello.
It is such a nice family.
[Applause.]
Chairman Schumer. Thank you. And I know the three of you
are proud of your husband and dad, so thanks for coming.
Ms. Ravel, I understand you, too, have brought family and
friends your husband, Steve Ravel, your son and daughter-in-
law, Gabriel Ravel and Katie Marcellus Ravel, your daughter,
Shana Ravel, and your good friend, Elaine Mielke, and they are
a very nice family and friends, too, so will you please stand
so we can recognize you and thank you for coming.
[Applause.]
Chairman Schumer. Thank you.
I also want to welcome FEC Chair Ellen Weintraub and
Commissioner Caroline Hunter, along with FEC Director Alec
Palmer. Thank you all for coming, and since you do not have
your adorable families with you, we are not going to ask you to
stand, although I know they are adorable.
[Laughter.]
Chairman Schumer. The nomination of new Federal Election
Commission members comes at a critical juncture. Originally
envisioned as an independent Federal watchdog agency, the FEC
of today seems to be stuck in its own version of partisan
gridlock. As we know, by law, no more than three Commissioners
can be members of the same political party and at least four
votes are required for any Commission action. This structure
was encouraged to create nonpartisan decisions. We also
recognize that three-three deadlock votes are not always
unexpected.
The problem, however, is in recent years, deadlock votes
are occurring with increasing frequency, and as a result,
enforcement of existing campaign finance laws is down
significantly. Violators may go unpunished. Others may be
emboldened to cross the line on our campaign finance laws and
rules, and that is unacceptable. So, at a time when the amount
of money in politics, as Senator Udall ably noted, is reaching
new highs, we must have a functioning FEC.
The Commission is designed to play a critical role in our
campaign finance system. Almost 40 years ago, Congress created
the FEC to administer and enforce the Federal Election Campaign
Act, and that is the law that governs the financing of Federal
elections. The agency is tasked with investigating and stopping
financial campaign abuses. It also ensures disclosure of
legally mandated campaign finance information, and it audits
campaigns and organizations to ensure compliance with our
nation's laws as enacted by Congress and interpreted by the
courts. The search for compromise on each of these functions,
we know, is difficult, but it is worth the effort.
I am encouraged by the nomination of two well-qualified
candidates testifying before the committee. Your experience
with campaign finance issues suggests that both of you have the
ability to find workable compromises. I hope to hear from both
of you that you also have the will and desire to do so.
I strongly urge both nominees to work diligently to restore
the role of the Federal Election Commission as a fully
functioning independent Federal watchdog for the nation's
campaign finance laws. It is my hope you will work together
with your FEC colleagues to find common ground and that the FEC
will move past the current partisan gridlock. With that, let me
turn to Senator Roberts for an opening statement, if he wishes
to make one.
OPENING STATEMENT OF SENATOR ROBERTS
Senator Roberts. Thank you, Mr. Chairman, and thank you for
calling this hearing.
We do have with us today two very well qualified nominees
before us. I have to apologize to both. I know we were to have
a personal visit, a courtesy call, and unfortunately, things
did not work that way with votes. We had the Bob Dole 90th
birthday celebration last night, which took a lot of
preparation, but at any rate, I apologize for that. But you
have both answered the questions that I submitted to you and I
really appreciate that.
Each brings an impressive legal background, Mr. Chairman,
as you have said, in the field of election law. And in their
prepared remarks, they each have expressed a commitment to
follow exactly your admonition, Mr. Chairman, to follow the
law, administer the campaign laws in a nonpartisan way. No
party can have a majority on the FEC. This does require each
party to work with the other for the Commission to act. It
prevents either party from using the Commission to target and
harass any political opponent. It compels collaboration and
allows the public and the regulated community to have
confidence that regulations will be developed and complaints
considered by a panel that neither party controls. Critics of
the FEC frequently claim it has been designed to fail. I
understand that, but I think the critics are wrong. The FEC is
not designed to fail. It is designed to prevent abuse. That can
only be assured when each party has an equal voice in its
decisions. I hope the nominees before us today will recognize
that for the Commission to function, they must work together to
achieve consensus, a tough job.
Should they be confirmed, they will be joining a Commission
that is now grappling with many important issues. Their
decisions will impact our citizens' ability to exercise
fundamental constitutional rights, the rights to speak and to
participate in our democratic process. I hope they will
approach that task with the seriousness it deserves. I am sure
they will. I look forward to hearing their remarks.
Thank you, Mr. Chairman.
Chairman Schumer. Thank you, Senator Roberts.
Senator Udall.
OPENING STATEMENT OF SENATOR UDALL
Senator Udall. Thank you very much, Chairman Schumer. Mr.
Chairman, we really appreciate you holding this hearing today.
As you know, I am a strong supporter of reforming our campaign
finance system. I believe one important step is to have a
functioning FEC where all six seats are filled with
Commissioners in terms that have not expired. Regrettably, that
has not been the case for quite a while. I hope we can begin to
change that with today's hearings.
Comprehensive campaign finance reform is crucial to our
democracy, but at the very least, we need to make sure that the
FEC is enforcing the laws that are on the books. Unfortunately,
recent Supreme Court decisions have gutted many of those laws
and we have seen the devastating impact on our elections. In
the Republican Presidential primaries alone last year, super
PACs spent over $100 million. More than half of that was for
negative TV ads, further poisoning our political process, by
groups that did not even have to say who was paying for all
that venom. By billionaires hiding in dark corners with
checkbooks open.
The Supreme Court laid the groundwork for this broken
system in 1976 with Buckley v. Valeo. Ruling that a restriction
on independent campaign spending violated the First Amendment
right to free speech. In effect, it said money and free speech
were the same thing. I do not think we can truly fix this
broken system until we undo that false premise.
That is why I have again introduced a constitutional
amendment. We need to overturn Buckley and the subsequent
decisions that relied on it. We have also tried to pass more
modest reforms, such as Senator Whitehouse's Disclose Act. That
bill had 40 cosponsors but could not overcome a filibuster last
year.
Campaign finance reform historically has been a bipartisan
issue. I hope it will be again. In the meantime, the FEC has a
vital role to play by diligently enforcing existing laws, and I
welcome our nominees and look forward to hearing their
testimony today.
Thank you very much, Chairman Schumer.
Chairman Schumer. Thank you, Senator Udall.
Senator Cochran.
OPENING STATEMENT OF SENATOR COCHRAN
Senator Cochran. Mr. Chairman, I am pleased to join you and
the other members of the committee in welcoming the witnesses
and am looking forward to our discussion at the hearing.
Thank you.
Chairman Schumer. Thank you, Senator Cochran.
Senator King.
Senator King. No statement, Mr. Chairman.
Chairman Schumer. Senator Blunt.
OPENING STATEMENT OF SENATOR BLUNT
Senator Blunt. Mr. Chairman, for eight years, I was the
Secretary of State in Missouri, which is the chief election
official in our State. We dealt with the FEC often and with
good results during that period of time. I am glad to see these
two individuals with strong backgrounds. An FEC that can meet
the hopes of the organization when it was formed is something I
think we have not accomplished yet. I'm hopeful with the
addition of these two new people, we will get a step closer to
making the FEC the functioning and refereeing group we hoped it
would be when it was created.
I am glad to be here. Thank you for having this hearing
today.
Chairman Schumer. Thank you, Senator Blunt.
And now, since we have more than two members here, we can
swear the witnesses in, so will the witnesses please rise and
raise their right hand.
Do you swear that the testimony you are to provide is the
truth, the whole truth, and nothing but the truth, so help you
God?
Mr. Goodman. I do.
Ms. Ravel. I do.
Chairman Schumer. Please be seated.
We will now hear from our nominees in alphabetical order.
First, Mr. Goodman, and then Ms. Ravel. Your entire statements
will be read into the record, so if you can limit your
statements to five minutes, we would appreciate it.
Before Mr. Goodman begins, I want to thank a member of this
committee, Senator Feinstein, who could not be here this
morning but submitted a statement in support of Ms. Ravel.
[The prepared statement of Senator Feinstein inserted for
the record:]
Chairman Schumer. I also want to express my appreciation
for the letters of support for Mr. Goodman and Ms. Ravel sent
in by colleagues and friends, so without objection, I will ask
Senator Feinstein's statement and letters of support be
included in the record.
Chairman Schumer. Mr. Goodman, you may proceed.
TESTIMONY OF LEE E. GOODMAN, OF VIRGINIA, NOMINATED TO BE A
MEMBER OF THE FEDERAL ELECTION COMMISSION FOR A TERM ENDING
APRIL 30, 2015
Mr. Goodman. Thank you, Chairman Schumer, Ranking Member
Roberts, and distinguished members of the committee. It is an
honor to be President Obama's nominee for the Federal Election
Commission. I appreciate Senator McConnell's recommendation of
me to the President and the decision of the President to
nominate me.
If you will indulge me, Senator Schumer, thank you for
recognizing my family. I would like to introduce them myself
with a little bit more detail. My wife, Paige, has been a
public schoolteacher. She teaches civics in Albemarle County,
Virginia, for over 20 years and she is a high school volleyball
coach.
My daughter, Piper, is a soccer and a volleyball player and
she gets all As in Latin, which she started taking in the fifth
grade.
And my son, Kemper--we often call him Kemp after my
favorite politician of the 20th century--he is a Little League
all-star catcher. He is a goalie in soccer, and he loves
Charles Dickens novels, especially Oliver Twist and Pip and
Great Expectations.
My wife and I met at the University of Virginia in the
1980s. We both were government majors. We both took classes
from Larry Sabato, a rather renowned political scientist who,
above all things, taught me a refrain, and it is on a bumper
sticker on our car now and it says, ``Politics is a good
thing.''
I got involved in politics about 25 years ago upon
graduation, and since that time, I have worked in politics at
virtually all levels of politics. I have been a policy and
legal advisor to a Governor and a State Attorney General. I
have been a campaign staffer. My first job out of college was
working for Vice President Bush's Political Action Committee,
the Fund for America's Future. And I have been a lawyer for
political party committees and for campaigns, from school board
members all the way to Presidential campaigns.
And probably the most influential role I have played in
politics is being a legal counsel to State and local political
parties, where I have seen citizens from all walks of life come
together to participate in our democratic process. And I know
that you know these people. They are the people who knock on
doors for you. They are the people who call. They are the
people who put signs in their yards. They are the people who
give you contributions.
And what I can tell you from my experience and over 25
years of involvement in politics is that I have a deep and
abiding respect for our American democratic process and respect
in the virtue of the people who engage in civic participation.
And so I have come to know what Larry Sabato taught me over 25
years ago, that politics is indeed a good thing.
Now, to keep it a good thing, Congress created the Federal
Election Commission. Senator Schumer, you summarized the
history of the Federal Election Commission quite appropriately.
But the difficulty that has arisen and permeated this field
over the years has been the delicate balancing between the
regulation of politics to prevent corruption of it on the one
hand and the protection of the First Amendment rights of the
citizens who participate in our political process on the other.
And this has proved a complicated enterprise, not just at the
Commission, but for this Congress and for the courts who have
dealt with these issues.
If the Senate confirms my nomination, I commit to you that
I will undertake this balancing role, of balancing First
Amendment protections against protection of the political
system against corruption, with several guiding principles in
mind.
First, the Commission must address legal and factual
questions without partisan bias. I have represented both
Democratic interests and Republican interests in my
professional career.
Second, the Commission's procedures must be fair.
Third, the Commission's regulations must be clear. Many
grassroots organizations cannot afford to hire lawyers to guide
them through a complex set of regulations.
Fourth, the Commission must fulfill its role to help people
comply.
And, fifth, I will endeavor to serve with integrity,
ethically, and with civility toward my colleagues on the
Commission.
In conclusion, it would be an honor to serve as a
Commissioner on the Federal Election Commission. I hope it is
the pleasure of this committee and the Senate to confirm my
nomination, and I look forward to answering any questions.
[The prepared statement of Mr. Goodman submitted for the
record:]
Chairman Schumer. You are a very precise man. You ended at
exactly five minutes to the second.
[Laughter.]
Chairman Schumer. Ms. Ravel.
TESTIMONY OF ANN MILLER RAVEL, OF CALIFORNIA, NOMINATED TO BE A
MEMBER OF THE FEDERAL ELECTION COMMISSION FOR A TERM EXPIRING
APRIL 30, 2017
Ms. Ravel. Chairman Schumer, Ranking Member Roberts, and
distinguished members of the Senate Committee on Rules and
Administration, I am very grateful to you for scheduling this
hearing to consider my nomination to serve on the Federal
Election Commission, and I also want to express my deep
appreciation to Senator Feinstein for her letter of support and
to President Obama for his confidence.
I know you introduced my family that is here today, but I
do have some family and friends watching in California very
early in the morning and I would like to mention them, as well.
My older son, Aaron, and his wife, Simone, and my gorgeous
granddaughter, two-and-a-half years old, Sofia, are at home, as
well as my brother, Paul Miller, his wife, Beth, and also my
great staff at the California Fair Political Practices
Commission, who got up at seven to go to the office to watch
this.
It is truly an honor and a privilege for me to be here
today. I know, having lived in Latin America most of my life,
how important it is to live in a country in which the
government is truly a representative one and in which every
citizen has the opportunity to take part in the governing
process.
I am the child of two orphans, both of whom grew up in
poverty. They would have been so proud to see their daughter
here today sitting in this beautiful chambers as a Presidential
nominee to the FEC. My parents forever instilled in me a
devotion to democratic values and public service.
Through hard work and the opportunities that were afforded
to him, my father was able to obtain a Ph.D. and ultimately
become a professor. My mother was an immigrant from Latin
America when they married and when she became a naturalized
citizen, her proudest moment and the proudest thing in her life
was that she could vote in this country and participate in the
public political process.
My parents always stressed to me the importance of engaged
participation in our representative democracy. Throughout my
career, I have endeavored to fulfill that charge. I have worked
at every level of government, as County Counsel, and I was
there--I hate to admit this--32 years, and after that at the--
as a Deputy Assistant Attorney General in the Department of
Justice, then the California Fair Political Practices
Commission. I have devoted decades to independently analyzing,
adhering to the language and intent of statutory and case law,
and writing and interpreting regulations consistent with law.
As Chair of the FPPC, to your point, Senator Roberts, I
have undertaken an overhaul of complex and sometimes
contradictory regulatory scheme to ensure that the regulations
support the law which was enacted by the public, to make sure
that everything is consistent with the original intent of the
law.
While at the Department of Justice, I helped to develop a
regulatory structure to ensure that legislation that provided
compensation to the first responders of 9/11 was properly
implemented. I met with interested parties, listened to their
concerns, analyzed the law, and worked to build consensus among
stakeholders, particularly consensus that was consistent with
Congress' intent that was enshrined in the legislation.
Throughout my career, I have worked very hard to build
consensus and interpret and apply the law in a neutral and
evenhanded manner. As County Counsel, I served a politically
diverse board, and yet my advice was always, above all, clear,
unbiased, and honest, and the same at the FPPC. I have worked
with a very politically diverse board and have always achieved
consensus.
If concern--well, thank you very much. Thank you for the
invitation to appear, and I am happy to answer any questions.
[The prepared statement of Ms. Ravel was submitted for the
record.]
Chairman Schumer. Mr. Goodman has set the model of
preciseness----
Ms. Ravel. Yes, he did. He did.
[Laughter.]
Chairman Schumer [continuing]. Which you ably followed.
Okay.
Well, let me ask the first round of questions here, and we
are going to try to limit the questioning to five minutes per
member. So these questions are for both nominees.
As I mentioned in my statement, I am extremely concerned
about the FEC's failure in recent years to enforce existing
campaign finance laws and rules. What actions would you take as
an FEC Commissioner to ensure effective enforcement of campaign
finance laws? So, first, Mr. Goodman, then Ms. Ravel.
Mr. Goodman. Well, Senator, as I mentioned in my opening
remarks, I am committed to enforcement of the Act as written by
Congress and I am committed to nonpartisan enforcement of the
Act. I do not intend to call balls and strikes one way for one
party and another way for a different party.
As far as the experience that the FEC has undergone in
recent years on an increasing number of three-three splits, I
do not know what the number of those is. I have read some
studies that indicate that approximately--in approximately 15
percent of the cases, the Commission appears to be splitting
three-three. Now, we need to look at that as somewhat glass
half full. That means in 85 percent of the time, the Commission
is in agreement and there is consensus. One of the reasons why
the Commission was built to be three-three was so that there
would be some consensus requirement between the parties in
enforcement decisions.
I think one reason we have been seeing an increase in
three-three splits in recent years is not necessarily because
of obstruction but because the law has been changing at a rapid
pace. Just in the last ten years, from the passage of the
bipartisan Campaign Finance Act and the McConnell, the FEC
decision, we then saw changes in the law as applied challenges
in Wisconsin Right to Life. We then saw Citizens United and we
have seen several important decisions that have altered the
First Amendment jurisprudence in this area out of the U.S.
Court of Appeals in the District of Columbia, particularly in
the case of Emily's List and then a case following up on
Citizens United called Speech Now.
And the changing First Amendment landscape, I think, has
given rise to, in some cases, honest disagreements, and the
Commission is trying to find its way in the wake of those
decisions.
Now, I am committed to making the FEC functional, working
for compromise, working in a nonpartisan way, but I believe we
do have to understand the three-three splits in that broader
context.
Chairman Schumer. Ms. Ravel.
Ms. Ravel. Thank you, Mr. Chairman. The purpose of the FEC
is clearly to instill confidence in the public in the political
system, and one of the mechanisms for doing that is enforcement
of our campaign finance laws. And I think that the public
perception now is that because of some of the stalemate and the
difficulty of reaching agreement at the Commission, that those
campaign finance laws have not been enforced sufficiently.
I would commit, and I think this is a very important thing
to the public, they expect the law to be followed as was
promulgated by Congress and their intent, so I will commit,
understanding, of course, that there are constitutional First
Amendment issues that need to be observed and concerned about,
but I will commit to work very closely with my fellow nominee
if we are, in fact, confirmed together, and the rest of the
Commission, to work very assiduously at enforcing those laws.
Chairman Schumer. My time has expired, so Senator Roberts.
Senator Roberts. Well, thank you, Mr. Chairman, and Piper,
I am very impressed with your five year commitment to Latin. I
had to take Latin.
[Laughter.]
Senator Roberts. I think my comments indicate that was not
my desire. My dad told me that if I took Latin, I would fully
understand--better understand the English language. I said, it
is a dead language, and if I had put the amount of time that I
had to study in Latin on English, I would get As in English.
[Laughter.]
Senator Roberts. I had to take Latin.
[Laughter.]
Senator Roberts. Dale Kildee, a former member of the House
of Representatives, was a Latin teacher, and every time I would
walk down the aisle to see Dale again in the House, he would
say, ``Mica, mica, parva stella. Miror quaenam sis tam bella,''
which you know is ``Twinkle, twinkle, little star.''
[Laughter.]
Senator Roberts. It is the only thing I remember, so I
wanted to commend you for that.
All right. One of the questions I sent to the witnesses
prior to the hearings, and Ms. Ravel addressed some of the
statements that reflect my concern, I really appreciate the
commitment that you have expressed to not prejudge matters that
may come before the FEC. Here is my problem, or my real issue
of concern.
The mere filing of a complaint, even a specious one, will
generate news coverage. That is just what happens. A political
opponent can then point to the complaint as if it is somehow
evidence of wrongdoing. Senator so-and-so has been accused of,
and you know the rest of it, as if the accusation itself
somehow reflects poorly on the subject of the complaint. It is
very important, it seems to me, that FEC Commissioners withhold
judgment on complaints and not publicly comment on them, even
though all the pressure from the Fourth Estate, until the
parties have had a chance to respond and all the facts are in.
I am assuming you would both agree. Just nod your heads.
Mr. Goodman. I do.
Ms. Ravel. Yes.
Senator Roberts. I will, something like that.
Ms. Ravel. Yes.
Senator Roberts. All right. So, I have your commitment that
you will withhold judgment and comment while complaints are
being investigated, and I also want to ask how we treat
Internet communications. I understand that in California, and
by the way, Ms. Ravel, thank you for giving the Chairman,
myself, all members of the committee more California exposure
than we have ever had----
[Laughter.]
Senator Roberts. But at any rate, I understand in
California, where everything happens first, there is some
consideration of a regulation that would cover bloggers,
requiring them to disclose if they have received payments from
campaigns. Now, we debated this in Congress a couple years ago.
Our Majority Leader, Senator Reid, actually introduced a bill
to exempt Internet communications from regulation. The FEC
ultimately adopted a regulation that covered only Internet
communications that are placed on another person's site for a
fee.
My question to you, ma'am, is how far are we going to take
this full disclosure idea? Do we really need to start
regulating bloggers, or for that matter, texters or tweeters or
any other form of communication that is so popular today? Are
new Internet regulations needed?
Ms. Ravel. Thank you very much for the question, Senator
Roberts. The California rule that is being proposed, and it has
not yet been adopted by the Commission, does not regulate
bloggers. It regulates the committees that are already
regulated under our laws, and that regulation that is being
proposed, and it is actually going to be heard in our August
meeting of the Commission, requires committees to explain with
specificity all payments that are being made to organizations
and other groups for their political purposes, which is
consistent with what is already being done in California. It is
merely explaining more specificity with respect to Internet
communications, and it does not apply to tweeting or other such
events that are done on the Internet.
Senator Roberts. I am an old newspaper man. I should have
said, I am a newspaper man.
[Laughter.]
Chairman Schumer. Former.
Senator Roberts. Former newspaper man. Former. Former.
Thank you, Mr. Chairman.
The First Amendment covers journalists.
Ms. Ravel. Correct.
Senator Roberts. Is a blogger a journalist?
Ms. Ravel. Well, there is some question about that, but
most journalists--most newspapers do not get paid for political
opinions that are placed in them, say, in their editorials----
Senator Roberts. Well, you have to have an awful lot of
online connection to the newspapers, who are getting smaller
and smaller and they are having a very difficult time to
monetize the product. I just wonder if, in fact--I went to
journalism school. We paid attention to the canons of
journalism that were issued by the University of Missouri some
time ago. I doubt if any blogger does that, any common blogger,
whatever that means.
And that really gets to my question. How do you define a
journalist today? Is it a blogger? Is it a tweeter, a texter,
and so forth? And some of the blogs are extremely popular, as
you know. And some, I think, would like to be considered as
journalists. That is an open question.
Ms. Ravel. Right.
Senator Roberts. I do not know what the answer is.
Ms. Ravel. I agree with you. I do not think that it is a
simple question, and I have relied on counsel for their
analysis in this matter. But, as I said, we have received
public comment. We will receive more public comment at the
meeting that we are having to discuss this issue----
Senator Roberts. Right.
Ms. Ravel. and so there is no decision that has been made.
Senator Roberts. I appreciate that. Mr. Chairman, I am over
a minute-twelve, so we will have to call on Mr. Goodman to give
me more time back.
Chairman Schumer. No, no, he used exactly the right amount.
Senator Roberts. That is my point.
[Laughter.]
Chairman Schumer. Senator Udall, would you like to ask some
questions?
Senator Udall. Thank you, Mr. Chairman.
Mr. Goodman, there was an editorial recently in the
Washington Post, on July 14, that said, and I quote,
``Fundamentally, the Republican Commissioners seem not to
believe in the campaign finance laws that Congress has passed
and that they are bound to enforce,'' and that is the end of
the quote. I would ask, Mr. Chairman, that that editorial be
put into the record.
[The information of Senator Udall submitted for the
record:]
Chairman Schumer. Without objection.
Senator Udall. Can we receive your commitment that, if
confirmed, you will fully enforce all existing campaign finance
laws and FEC regulations, even if you have personal opposition
to a law or FEC regulation?
Mr. Goodman. Yes, Senator, you can. I undertake this post
with the solemnity of knowing that it is a law enforcement
post. I would not undertake it with any intent to subterfuge
the law that I am agreeing to enforce.
Senator Udall. And are there any existing campaign finance
laws that you think should be repealed or not enforced, and if
so, which ones and why?
Mr. Goodman. Well, Senator Roberts addressed some questions
to Chairman Ravel and to me that gave some examples of some
that should be repealed, and those were the ones that were
squarely and unequivocally held to be unconstitutional by the
Supreme Court in the Citizens United decision. So, for example,
if you look in the U.S. Code, and you can look in the Code of
Federal Regulations today, three years after the Supreme Court
ruled in Citizens United, and you can see in 11 CFR Section
114.2(b) an express prohibition against labor unions and
corporations from spending money to make independent
expenditures. There is a law that says they cannot spend their
treasury funds to expressly advocate to the public the election
or defeat of any candidate. That regulation, that rule of law,
was held unconstitutional in Citizens United.
It has historically been the practice of the Commission to
eliminate regulations that have been held unconstitutional,
even by courts lower than the Supreme Court. So, for example,
when the U.S. Court of Appeals for the District of Columbia
ruled three regulations to be unconstitutional and to exceed
the Act in a case brought by Emily's List, the Commission
thereafter repealed those three regulations.
So that would be a case where I would feel prohibited by
the ruling of the Supreme Court from enforcing a law that is
still on the books.
Senator Udall. The unfortunate thing about the Citizens
United ruling, in my opinion, is that we have now, and the
following Speech Now ruling, is that we have now reached the
point with that ruling that corporate treasuries are now in
play in terms of campaign finance. And so, just to pick one
corporation, ExxonMobil has $81 billion in its corporate
treasury that now can go into the campaign system. As you know,
in the last election, both the President and all the other
Federal officials spent about $6 billion. So this is a huge
amount of money flooding into the system, and I think it
corrupts the system. So we are going to have to deal with that
ruling. I have a constitutional amendment to deal with that,
but you are also going to have to deal with that as an FEC
Commissioner.
The New York Times recently published an editorial titled,
``Sabotage at the Election Commission.'' I would ask that that
editorial, Mr. Chairman, also be included in the record.
[The information of Senator Udall submitted for the
record:]
Chairman Schumer. Without objection.
Senator Udall. The editorial opposed efforts to take
advantage of a temporary three-to-two Republican majority on
the FEC to change the agency's enforcement rules, including how
DOJ and the FEC can communicate. What is your opinion of the
proposed changes to the FEC Enforcement Manual to change how
DOJ and FEC can communicate? Do you think the Commission should
attempt to make substantial changes when there are only five
Commissioners with nominees pending Senate confirmation? And I
would ask you both to answer that.
Mr. Goodman. Senator, I will have to defer judgment on the
substance of the manual because there is a long history, there
is a longstanding Memorandum of Understanding between the FEC
and the Department of Justice that I have not been privy to. I
have not read the extant manual and my knowledge of it is
essentially what I have read in the New York Times and other
publications.
What I would want to be apprised of is the substance of the
historical MOU, historical practice within the Commission, and
I would also want to be apprised of some things I have read in
the newspaper about whether or not the General Counsel's Office
in the Federal Election Commission has been keeping the
Commission, its client, apprised of communications with the
Department of Justice, before I came to a definitive
substantive position on how that Enforcement Manual should be
changed, if at all.
Senator Udall. Thank you.
Ms. Ravel. Thank you, Senator Udall. I have some of the
same concerns and views that Mr. Goodman has with respect to
this issue. While I have read the articles in the newspaper, I
do not know sufficient information relating to the Enforcement
Manual and the rules of the FEC with regard to voting and what
is appropriate in this particular matter. So I would hesitate
to make a commitment or a judgment at this moment.
I would say that at the FPPC, we worked on the case
involving a theft of a lot of money from 300 committees in
California by the treasurer and we worked closely with DOJ and
with the FBI on that matter because a couple Federal candidates
were subjects of that fraud and that theft. So it would be
important to me to see what the issues are in this case because
I have had some experience in this and think that it worked out
very well for California.
Senator Udall. Thank you both very much, and we look
forward to you sorting out this dysfunctional FEC.
Chairman Schumer. Thank you, Senator Udall.
Senator Cochran.
Senator Cochran. Thank you very much, Mr. Chairman.
Let me ask the witnesses about a filing requirement of the
Campaign Disclosure Parity Act. I am a sponsor of an amendment
that we were considering offering to this bill that would be
equivalent to the Campaign Disclosure Parity Act, S. 375. I was
a cosponsor with other Senators of this bill and it deals with
the filing of the finance reports directly with the FEC.
Currently, Senators file their reports with the Secretary of
the Senate, and the procedure, as I understand it, is printing
of the report and distributing it to the members of the FEC and
others, and I am told that eliminating this extra step would
save up to $500,000 a year and provide greater transparency in
the campaign finance disclosure process.
I am curious to know whether you think that is a good idea,
to support that change, or not. Ms. Ravel.
Ms. Ravel. Thank you very much, Senator Cochran. I am a
very strong advocate of e-filing and working very hard to do
that in California, and I do understand that it saves time, it
saves a lot of money for the agency, and also gives greater
transparency to the public, which is one of the core reasons
for the existence of the FEC.
However, of course, whatever it is that Congress determines
is what, if I were confirmed, I would implement.
Senator Cochran. Mr. Goodman.
Mr. Goodman. Senator, I certainly defer to the Senate's
judgment on how the Senate wants to regulate itself. But in the
21st century, I see local campaigns for House of Delegates and
other campaigns using electronic filing quite effectively. It
does eliminate steps. It does aid transparency. It is less
expensive to deal with on the agency side. And Chairman Ravel
and I have already discussed one area of agreement, which is to
improve the transparency and reporting on the FEC's Web site of
campaign data. The Web site is a bit dated and a bit clunky.
So I would, in concept, certainly support the--if it is the
Senate's desire to report electronically, I think it is a good
idea.
Senator Cochran. Yes. Thank you.
Thank you, Mr. Chairman.
Chairman Schumer. Thank you, Senator Cochran.
Senator Blunt.
Senator Blunt. Thank you, Mr. Chairman.
Mr. Goodman, I thought actually citing your favorite
politician of the 20th century was very shrewd because we are
all competitive and it gives us all a chance to be your
favorite politician of the 21st century.
[Laughter.]
Mr. Goodman. For my third child.
Senator Blunt. Exactly.
[Laughter.]
Senator Blunt. I had a number of people reach out to me
about your reliable work over the years and your willingness to
work for both Democrats and Republicans. One of them is, Harvey
Tettlebaum, a Republican lawyer in Missouri who has been the
State Party Counsel among other things. I think you both are
also involved in some of the same groups, as well. I am pleased
you are here today.
Ms. Ravel, the same with you. Your background is an
excellent one to bring to the Commission.
You mentioned there were examples of insufficient
enforcement of campaign finance laws. Do you have some specific
examples of that?
Ms. Ravel. I merely was saying, Senator Blunt, that I had
heard, because, you know, clearly, I am in California and I do
not know the specifics of what has transpired at the FEC. But I
read news reports and that is what I am basing it on. I did not
indicate that there were specific examples. What my view is,
that the public perception is, as has been transmitted in some
news reports, is that there has been insufficient enforcement.
So I do not have any specific examples.
Senator Blunt. The FEC is equally divided, is that right?
Ms. Ravel. Yes, it is, sir.
Senator Blunt. So it is possible at the FEC to have a tie
vote. In most agencies, not, but it is possible at the FEC.
Ms. Ravel. No question. It is possible.
Senator Blunt. And we all understand the reason for that,
and I am not advocating.
Ms. Ravel. Right.
Senator Blunt. It is one of the few agencies where actually
you can wind up with a disagreement with everybody
participating, whether it is the current moment when there
happens to be one more person from the other party. It is not
usual, and one of the few agencies like that. We need the FEC
to work, and those of us who run for office need it to work in
a way that is fair and defends us from people doing things
outside the law, but at the same time allows the discourse of
the campaign to occur.
Ms. Ravel. Right.
Senator Blunt. Have you had any examples in your job in
California that you think would be particularly applicable to
what you will be doing here?
Ms. Ravel. Well, I think the best example is that I
absolutely agree with you that an important aspect of this job
is to ensure that people participate in politics, and that is
not just voters but that people can run and run in a way that
is not encumbered by terribly cumbersome, difficult to
understand regulations, and that enforcement should be only
with respect to those matters that are serious and matters that
evidence corruption, and not matters that are inadvertent
mistakes.
And in California, when I began as the chair, they were
clearly enforcing against candidates, and, of course,
California, these are candidates all the way from Water
District and School Board to the Legislature and the Governor
that we oversee. And many of those candidates do not have
lawyers. They have treasurers who are their mother-in-law or,
you know, somebody like that, most of them.
And so when I began, I said, we need to make sure that
enforcement is fair and that we are not trying to trap people
in inadvertent mistakes, that we are actually regulating and
enforcing only the most serious violations of people who are
purposely trying to flaunt the law. So I believe that my views
are consistent with yours, Senator, in this instance.
Senator Blunt. Well, they certainly are on that issue. One
of the things we have done in the country in the last 20 years,
and many of us here have participated in it one way or another,
is pass laws that essentially criminalize politics and
criminalize mistakes that people can make. I think that is such
an important principle.
Mr. Goodman, would you like to comment on that? This will
be my last question here.
Mr. Goodman. Yes, Senator. As I mentioned, in 85 percent of
the cases, the Commission is in agreement and they are
enforcing the law. And the area of disagreement is largely
permeated by changing First Amendment jurisprudence. The three-
three split not only protects one side against partisan bias in
enforcement, but the three-three constitution and sometimes
three-three splits also respects philosophical disagreements on
how to regulate the process. And I think we have to acknowledge
that.
To use a sports analogy, if one team has a great passing
offense and also gets to set the rules, well, then the linemen
are going to be able to hold. There will be no bumping by
cornerbacks at all of the wide receiver, and you can never hit
the quarterback.
Senator Blunt. Jack Kemp would be proud.
Mr. Goodman. That is right.
[Laughter.]
Senator Blunt. Mr. Chairman, I am done. Thank you.
Chairman Schumer. And so would the Buffalo Bills.
[Laughter.]
Chairman Schumer. Are there any--does anyone wish a second
round of questioning?
Senator Roberts. I just want to ask unanimous consent that
the five letters of support from very esteemed friends of Mr.
Goodman be inserted in the record at this point.
[Letters submitted for the record:]
Chairman Schumer. Without objection.
Senator Roberts. And just to follow up on Senator Blunt's
comments, I think there is a comparability or a commensurate
example between the FEC and the esteemed Senate Ethics
Committee. I have been appointed to the Ethics Committee for
all of my public service in the Senate. I do not know what I
have done wrong.
[Laughter.]
Senator Roberts. I have resigned twice. The resignation has
not been accepted by the leadership.
And I worry about these ``gotcha'' opportunities that every
campaign, unfortunately, seems to use as a tool in their
campaigning, and I mentioned this before in my statement. I do
not even know if we need to ask you for a comment, because I
think I know exactly what you are going to say in terms of how
you are going to hope that the FEC will comport themselves in a
way that this does not happen, i.e., publicly stating something
about somebody's complaint. Many times, they are specious.
I will tell you that the Ethics Committee receives
complaints every day. Most of them are about minutiae. But when
that happens, anybody can file an ethics complaint, and as a
result, it gets press coverage immediately, and the Senate
Ethics Committee then sees it in the public domain, whether it
be a blog or whether it be in print or whether it be anything,
and we will investigate it. And then that takes about three
months, and during that time, why, the person who lodged the
complaint just pounds the living you-know-what out of his or
her opponent.
We cannot comment on anything. I mean, there are no leaks
in the Senate Ethics Committee. That has been the way for,
what, 14, 15 years that I have been on it--16. I just do not
think that is right, and I have always been trying on the
Ethics Committee to say, let us be very selective about what
really is an ethics violation as opposed to just open season.
If people who are looking to run for office, and we are
looking for good people to run for office, both parties,
Independents, whomever, whatever level, my Lord, if they really
realized and went through the entire Ethics Manual, which I
defy anybody to explain--we used to try to do that at the
beginning of every Congress. Harry Reid and I tried to do that.
Harry Reid and I tried to simplify it, the regs on the Ethics
Committee. That was a bad mistake. We went to the Republican
Conference and Harry went to the Democratic Caucus and it grew
bigger. You open it up and you have people putting more stuff
in there.
And now, you have a situation that I think if candidates
would really take the time for a couple of days to look at all
the stuff that they have to do and what could happen to them
and how much they have to reveal, I am not sure they would run.
I think there is a hindrance there, and I think that factor,
there again, of what people do with the FEC and with House
Ethics Committee--the House has two Ethics Committees. What is
that all about? We have an Ethics Committee first to determine
whether or not it should go to the Ethics Committee. It is that
bad.
And so I think there is a lot of common sense here that we
could apply and I hope you both--I know you will, because you
have a very rich background and you have already declared that.
I just wanted to express my concern on the record for that, Mr.
Chairman, and I thank you for that.
Chairman Schumer. Well, I thank you, and knowing your
record on the Ethics Committee, I think you would make an
outstanding nominee to the FEC.
[Laughter.]
Chairman Schumer. And I think I might urge Senator
McConnell to consider you.
[Laughter.]
Chairman Schumer. Anyway, all kidding aside, I thank the
witnesses for their outstanding testimony. We are going to look
forward to working with you for our goal of swift confirmation
by the full Senate.
The record is going to remain open for five business days
for additional statements and post-hearing questions submitted
in writing for the nominees to answer.
Being there no further business before the committee, the
committee is adjourned.
[Whereupon, at 10:57 a.m., the committee was adjourned.]
APPENDIX MATERIAL SUBMITTED
----------
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
BUSINESS MEETING--TO CONSIDER THE.
NOMINATION OF DAVITA VANCE-COOKS.
TO BE PUBLIC PRINTER AND S. 375
----------
WEDNESDAY, JULY 24, 2013
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 9:59 a.m., in
Room SR-301, Russell Senate Office Building, Hon. Charles E.
Schumer, Chairman of the committee, presiding.
Present: Senators Schumer, Udall, King, Roberts, Cochran,
and Blunt.
Staff Present: Jean Bordewich, Staff Director; Kelly Fado,
Deputy Staff Director; Stacy Ettinger, Chief Counsel; Ellen
Zeng, Elections Counsel; Sharon Larimer, Assistant to the Staff
Director; Abbie Sorrendino, Professional Staff; Nicole Tatz,
Legislative Correspondent; Matthew McGowan, Professional Staff;
Adam Topper, Staff Assistant; Mary Suit Jones, Republican Staff
Director; Shaun Parkin, Republican Deputy Staff Director; Paul
Vinovich, Republican Chief Counsel; Sarah Little,
Communications Director; Trish Kent, Republican Professional
Staff; and Rachel Creviston, Republican Professional Staff.
OPENING STATEMENT OF CHAIRMAN SCHUMER
Chairman Schumer. The hearing will come to order. The
committee needs a quorum, ten members. We ask the members to
maybe stay around. We are going to try to round up four more--
we have six now--so we can actually move forward on these
nominees. Then we will go to the hearing but come back into the
session from the hearing session if we can get ten.
But, in the meantime, does any Senator wish to make a
statement on either the nomination of Davita Vance-Cooks to be
Public Printer or I know we have some cosponsors of S. 375, the
electronic filing bill, to require Senate candidates to file
designations, statements, and reports in electronic form. I do
not have a statement, but if you do, go right ahead.
Senator Cochran. Mr. Chairman, I have a statement on the
Campaign Disclosure Parity Act. Is that something that we are
going to consider this morning, as well?
Chairman Schumer. Yes, it is, indeed.
Senator Roberts. Why do you not go ahead and then I will--
--
Chairman Schumer. Go ahead, Thad. The Senator from
Mississippi and then any of the Senators on our side will be
recognized, too.
OPENING STATEMENT OF SENATOR COCHRAN
Senator Cochran. Mr. Chairman, I am pleased to be one of
the sponsors of this bill, the Campaign Disclosure Parity Act,
and we thank you for holding this markup today to consider it.
Not only does the bill have the support of a group of 34
cosponsors from both parties, including several members of this
committee, but it also has the support of the Secretary of the
Senate and the Federal Elections Commission.
In a time of sequestration and fiscal restraint, this bill
affords an opportunity for us to save over $500,000 per year
for the Senate and the Federal Elections Commission. It would
reduce duplicative work and would align the filing process for
Senate candidates with those of political committees and
candidates for Federal office, including Presidential
candidates and candidates for the U.S. House of
Representatives.
I am pleased to join Senator Tester as a cosponsor of this
bill and I am hopeful the committee will favorably report it to
the full Senate. Thank you.
Chairman Schumer. Thank you, Senator Cochran.
Senator Udall, do you want to make a statement?
Senator Udall. My statement is on the FEC nominees.
Chairman Schumer. Thank you. Senator Roberts, and then
Senator King.
OPENING STATEMENT OF SENATOR ROBERTS
Senator Roberts. I only say that it always is of some
concern to me that when we go down the road to reform and we
wave the banner of reform, we want to see what is underneath
it, and I think there is something called the First Amendment
there and I want to make sure that we appreciate that fact.
Thank you for your leadership, and I hope we can get a
quorum of ten to finish our business.
Chairman Schumer. Thank you, Senator Roberts.
I will also ask, Senator King, do you wish to make an
opening statement?
Senator King. No, Mr. Chairman.
Chairman Schumer. Senator Blunt.
Senator Blunt. No, Mr. Chairman.
Chairman Schumer. Okay. It is long past time for Senate
candidates to file campaign reports in the same way as every
other Federal candidate has for years. The Senate's current
system is stuck in the past and wastes over half-a-million tax
dollars a year to perpetuate a redundant, slow, and completely
unnecessary process that prevents the public from seeing Senate
candidates' expenditures for more than a month after the
reports are already online. At a time when Federal budgets have
been slashed and savings are being sought, there is no reason
to continue.
And I want to thank Senator Tester for his strong
leadership on this issue.
Chairman Schumer. Okay. We do not have a quorum, so I think
we will go on to the hearing.
Okay. So, we have to go into recess. I would now recess our
markup subject to the call of the chair. What we will try to do
is assemble a quorum of ten, since I do not think we will get
it this morning, off the floor when we have one of the votes,
and I would urge the members here and all other members whose
staff is here to please cooperate. As you know, we are trying
to move nominations. These are non-controversial nominations,
and so if we could move them quickly, that would be of great
help.
With that, we are recessed.
[Whereupon, at 10:06 a.m., the committee recessed, subject
to the call of the chair.]
The committee reconvened, at 4:05 p.m., July 24, 2013, in
Room S-217, United States Capitol Building, Hon. Charles E.
Schumer, chairman of the committee, presiding.
Present: Senators Schumer, Roberts, Durbin, Murray,
Chambliss, Pryor, Tom Udall, Warner, Leahy, Klobuchar, and King
Staff Present: Jean Bordewich, Staff Director; Kelly Fado,
Deputy Staff Director; Stacy Ettinger, Chief Counsel; Abbie
Sorrendino, Legislative Assistant; Mary Jones, Republican Staff
Director; Shaun Parkin, Republican Deputy Staff Director; Paul
Vinovich, Republican Chief Counsel; Rachel Creviston,
Republican Professional Staff, and Adam Topper, Staff
Assistant.
Chairman Schumer. We now have a quorum of 10 Members to
continue our markup.
Is there any further debate on the nomination of Davita
Vance-Cooks to be the public printer?
The question is on reporting the nomination favorably to
the Senate. Unless there is a request for a roll call vote,
this will be a voice vote.
Chairman Schumer. All in favor, say aye.
[A chorus of ayes.]
All opposed, say nay.
Chairman Schumer. The ayes have it. The nomination is
ordered favorably reported to the Senate with the
recommendation that the nominee be confirmed.
The second item is S. 375. Unless there is a request for a
roll call vote, this will be a voice vote. Is there any further
debate on S.375, a bill to require Senate candidates to file
their campaign reports directly with the Federal Election
Commission in electronic format, rather than on paper with the
Secretary of the Senate?
The question is on reporting S. 375 favorably to the
Senate.
Chairman Schumer. All in favor, say aye.
[A chorus of ayes.]
All opposed, say nay.
The Ayes have it. S. 375 is ordered reported to the Senate.
I want to thank everyone for coming. The meeting is
adjourned.
[Whereupon, at 4:14 p.m., the committee adjourned.]0
BUSINESS MEETING--TO CONSIDER THE.
NOMINATIONS OF ANN M. RAVEL AND LEE E. GOODMAN TO BE MEMBERS OF THE.
FEDERAL ELECTION COMMISSION.
AND S. RES. 229
----------
WEDNESDAY, SEPTEMBER 17, 2013
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met pursuant to notice, at 11:01 a.m., in
room S-219, United States Capitol, Hon. Charles E. Schumer,
Chairman of the committee, presiding.
Present: Senators Schumer, Murray, Klobuchar, King,
Roberts, Cochran, Chambliss, Alexander, Shelby, Blunt.
Staff Present: Jean Bordewich, Staff Director; Kelly Fado,
Deputy Staff Director; Stacy Ettinger, Chief Counsel; Abbie
Sorrendino, Legislative Assistant; Mary Jones, Republican Staff
Director; Shaun Parkin, Republican Deputy Staff Director; Paul
Vinovich, Republican Chief Counsel; Sarah Little, Republican
Communications Director; Rachel Creviston, Republican
Professional Staff, and Adam Topper, Staff Assistant.
Chairman Schumer. We now have a quorum of 10 Members to
continue our markup. We will consider the two FEC nominations
individually, followed by consideration of two resolutions
related to committee funding.
Unless anyone objects, my statement regarding the markup of
the two FEC nominees will be included in the Committee record.
[So ordered.]
Is there any further debate on the nominations of Lee
Goodman or Ann Ravel to be Members of the Federal Election
Commission?
The question is on reporting the nominations favorably to
the Senate. Unless there is a request for a roll call vote,
this will be a voice vote.
First up for consideration is Mr. Lee Goodman.
All in favor, say aye.
[A chorus of ayes.]
All opposed, say nay.
The ayes have it. The nomination of Mr. Lee Goodman is
ordered favorably reported to the Senate with the
recommendation that the nominee be confirmed.
Next up for consideration is Ms. Ann Ravel.
All in favor, say aye.
[A chorus of ayes.]
All opposed, say nay.
The Ayes have it. The resolution is ordered reported to the
Senate.
The final item for consideration is an original resolution
authorizing expenditures by the Committee on Rules and
Administration for the remainder of the 113th Congress.
For Fiscal Year 2014, the amount is not to exceed
$2,334,743, and the same amount is pro-rated for the first five
months of Fiscal Year 2015.This is the same level as the
current expenditure guidance.
Is there any further debate on the resolution authorizing
expenditures by the Committee on Rules and Administration for
the remainder of the 113th Congress?
The question is on reporting the resolution favorably to
the Senate. Unless there is a request for a roll call vote,
this will be a voice vote.
All in favor, say aye.
[A chorus of ayes.]
All opposed, say nay.
The Ayes have it. The resolution is ordered reported to the
Senate.
I want to thank everyone for coming. Before I adjourn, I am
going to ask our Ranking Member, Senator Roberts, whether he
wishes to make any remarks.
Thank you. The meeting is adjourned.
[Whereupon, at 11:09 a.m., the committee adjourned.]0
BUSINESS MEETING--TO CONSIDER S. RES..
253, AN ORIGINAL RESOLUTION.
AUTHORIZING THE EXPENDITURES.
OF SENATE COMMITTEES
----------
TUESDAY, SEPTEMBER 24, 2013
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 10:04 a.m., in
Room SR-301, Russell Senate Office Building, Hon. Charles E.
Schumer, Chairman of the committee, presiding.
Present: Senator Schumer.
Staff Present: Jean Bordewich, Staff Director; Kelly Fado,
Deputy Staff Director; Stacy Ettinger, Chief Counsel; Abbie
Sorrendino, Professional Staff; Lynden Armstrong, Chief Clerk;
Adam Topper, Staff Assistant; Mary Jones, Republican Staff
Director; Shaun Parkin, Republican Deputy Staff Director; Paul
Vinovich, Republican Chief Counsel; Sarah Little,
Communications Director; Trish Kent, Republican Professional
Staff; and Rachel Creviston, Republican Professional Staff.
OPENING STATEMENT OF CHAIRMAN SCHUMER
Chairman Schumer. All right, the Committee will come to
order.
We do not have a quorum of ten members present. We cannot
proceed to vote on the item, the Omnibus Committee Funding
Resolution, on the announced agenda for this business meeting.
Since a quorum is not present, the Committee will recess,
subject to the call of the Chair, take up this matter when we
can obtain a quorum.
I intend to convene another meeting, most likely
immediately after the 11:45 judge vote on the Senate floor.
The Committee stands in recess, subject to the call of the
Chair.
[Whereupon, at 10:05 a.m., the Committee was recessed.]
The committee reconvened, at 11:55 a.m., September 24,
2013, in Room S-219, United States Capitol Building, Hon.
Charles E. Schumer, chairman of the committee, presiding.
Present: Senators Schumer, Feinstein, Durbin, Murray,
Pryor, Leahy, Klobuchar, King, Roberts, Cochran, and Alexander.
Chairman Schumer. We have a quorum of ten members. Is there
any further debate on the resolution authorizing the reporting
of committee funding resolutions for the period October 1,
2013, through February 28, 2015?
Chairman Schumer. The question is on reporting the
resolution favorably to the Senate. Unless there is a request
for a roll call vote, this will be a voice vote. Is there a
second?
Senator Roberts. Second.
Chairman Schumer. All in favor say ``aye.''
[A chorus of ``ayes''.]
Chairman Schumer. All opposed?
[No response.]
Chairman Schumer. The ayes have it. The resolution is
ordered reported to the Senate.
[Whereupon, at 12:05 p.m., the Committee was adjourned.]0
HEARING--NOMINATIONS OF THOMAS HICKS.
AND MYRNA PEREZ TO BE MEMBERS OF THE ELECTION ASSISTANCE COMMISSION
----------
WEDNESDAY, DECEMBER 11, 2013
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 10:00 a.m., in
Room SR-301, Russell Senate Office Building, Hon. Angus King,
presiding.
Present: Senators King and Roberts.
Staff Present: Jean Bordewich, Staff Director; Stacy
Ettinger, Chief Counsel; Veronica Gillespie, Elections Counsel;
Abbie Sorrendino, Professional Staff; Phillip Rumsey, Staff
Assistant; Lynden Armstrong, Chief Clerk; Matthew McGowan,
Professional Staff; Mary Suit Jones, Republican Staff Director;
Shaun Parkin, Republican Deputy Staff Director; Paul Vinovich,
Republican Chief Counsel; Trish Kent, Republican Professional
Staff; and Rachel Creviston, Republican Professional Staff.
OPENING STATEMENT OF ACTING CHAIRMAN KING
Senator King. The Rules Committee will please come to
order. Good morning.
I would like to ask the witnesses to be at the table, which
I see that they are, and on today's agenda is the consideration
of the nominations of Mr. Thomas Hicks and Ms. Myrna Perez, to
be members of the Election Assistance Commission.
As we now have at least two members present, I will proceed
to swear in the nominees. I know that members have other places
to go, and I want to swear in our witnesses promptly. After the
swearing in, we will move to opening remarks from the committee
members.
So, if our witnesses could stand and raise your right hand.
Do you swear that the testimony you are to provide is the
truth, the whole truth, and nothing but the truth, so help you
God?
Mr. Hicks. I do.
Ms. Perez. I do.
Senator King. Thank you. Please be seated.
Mr. Hicks and Ms. Perez, I would like to welcome you both
here today and congratulate you on your nomination to be
members of the Election Assistance Commission.
I would also like to welcome both of your families who have
joined you here today. Mr. Hicks, I understand that you are
accompanied by your parents, Annie and Bennie Hicks, along with
your daughters, Lizzie and Meg, and your son, Eddie Hicks, and
if you would like, could your family please rise and be
acknowledged. Thank you. Glad to have you here with us today.
We appreciate your coming, especially Lizzie and Meg. Glad to
have you here.
And, Ms. Perez, I understand you are accompanied by your
husband, Mark Muntzel, and your son, Diego, and if you could
stand, please. Welcome to both of you.
Ms. Perez. They are actually still parking right now.
Senator King. Oh, they are parking. Well, they will be
ready here to join us.
Elections are at the heart of our democratic system.
Citizens need to be confident that elections are being
conducted in a free and fair manner.
This Commission was established by the Help America Vote
Act of 2002. The EAC was created to be an independent,
bipartisan commission charged with a number of
responsibilities, including developing guidelines to meet HAVA
requirements, adopting voluntary voting system guidelines, and
serving, importantly, as a national clearinghouse of
information on election administration.
The EAC has four Commissioner positions, two allocated to
the Democrats and two for Republicans, with candidates
recommended by Congress--to Congress to the President. The EAC
has not had a quorum since late 2010 and has had no
Commissioners since December of 2011. Without a quorum, the EAC
has not been able to fill the positions of Executive Director
and General Counsel. The Standards Board and the Board of
Advisors to the EAC, composed of State and local election
officials and members of the broader elections community, have
been unable to convene and do their work.
While election administration in the United States is
decentralized, the primary responsibility for conducting
elections falls on State and local election officials. But we
also must ensure that the Federal Government is able to fulfill
its election-related responsibilities. While most of the
original funds designated by HAVA to upgrade elections systems
in the States have been distributed, many of the important
functions of the EAC remain.
The Election Administration and Voting Survey, which is
compiled from data supplied from every election jurisdiction,
provides the only comprehensive picture of election
administration across the country and has won widespread
acclaim from election officials, scholars, and other experts as
a valuable source of information.
Additionally, all States have access to the state-of-the-
art EAC testing and certification program. The law in some
States requires the use of Federally certified voting systems.
Elsewhere, State and local officials may not have the resources
to detect voting system problems on their own, and the EAC can
examine whether they are getting fair prices, quality
equipment, and good service from the vendors they hire. This
program will become increasingly important as existing voting
systems become obsolete and States must buy new ones in the
near future.
The EAC's work to broaden access for voters with
disabilities and language minorities has saved money for local
jurisdictions that may otherwise be required to pay for this
work themselves.
And, finally, and, I believe, importantly, the
clearinghouse function of the agency can help highlight
innovation at the State and local levels. As a former Governor,
I often observed the lack of information that flows between the
States. I used to say that Jefferson characterized the States
as the laboratories of democracy, but nobody reads the lab
reports.
[Laughter.]
Senator King. There is very little communication, and I
think one important function this Commission can provide is as
a clearinghouse of best practices from across the country.
As local budgets are increasingly strained, the importance
of identifying best practices and sharing information becomes
even more important because it helps local and State election
officials do their jobs as cost effectively as possible.
I am pleased that we have two well-qualified candidates
that have been nominated and are testifying before the
committee today. I understand that there are questions about
the continued efficacy of the Commission itself and I suspect
that we will have statements raising those questions, but
today, we want to focus on these two nominees. But I welcome
the comments of my colleague, Senator Roberts, and would call
upon him for opening remarks.
OPENING STATEMENT OF SENATOR ROBERTS
Senator Roberts. I want to thank the Acting Chairman.
I want to make it very clear that none of my comments is a
reflection of the nominees' experience and commitment and
ability and desire to serve. Nevertheless, it seems like we
have been here before. It sounds like a song.
[Laughter.]
Senator Roberts. But, at any rate, this is the second time
that our witnesses have been before the committee as nominees
for this Commission. We previously had a confirmation hearing
for the nominees in June of 2011. Welcome back. I do not know
what to call this. I think maybe ``nomination purgatory'' might
be appropriate.
One significant difference today is the absence of a
Republican nominee. As the Acting Chairman has pointed out, the
Election Assistance Commission was established as a bipartisan
commission, intended to be evenly divided with two Republicans
and two Democrats acting as Commissioners.
As my colleague, Senator Alexander, ably demonstrated at
the hearing over two years ago, the Election Assistance
Commission has fulfilled its purpose and should be eliminated.
As I say again, no reflection on the nominees. At that hearing,
while Republicans on this committee called for hearings to
examine the need for this Commission, something that you might
think would be pretty basic, those hearings have never
happened, Mr. Chairman. Instead, we are back here over two
years later with the very same nominees. I think we owe you an
apology.
This committee has never had an oversight hearing on the
EAC, never. Despite its now expired authorization, we have
never examined the real continuing need for this Commission or
considered whether any remaining responsibilities could be
taken on by other agencies, or as the Chairman has ably pointed
out, the State laboratories, with regard to elections. We
cannot apparently be bothered to perform these basic oversight
obligations.
Nominations to commissions like this have normally been
paired with a Republican nominee joined to a Democrat. Because
Republicans have called for the elimination of the agency, we
simply have not put forward any new nominees. Now, in light of
our new rules, 51-50, the majority can, if they choose, do
whatever they would like to do and move these nominations with
no minority support and no Republican pair, something I hope
does not happen. That presents a problem for us in that it puts
us in the position of having to make appointments to a
commission that we do not think is necessary or otherwise
simply allow the majority to make its own appointments and
thereby control the Commission. While I do not think we need
this Commission, I do believe that if it is going to exist, it
must be balanced.
And the curious thing about the nominations before us today
is that Republicans do not seem to be the only ones who have
questioned the need for this Commission. Democrats do not seem
to have much regard for the EAC, either, though that lack of
regard has been expressed in deed rather than word. These
nominations had been made by the President of the United
States, yet when the President wanted an examination of the
problems in the 2012 election, did he turn to the EAC? No, he
did not. In fact, in March of this year, he created a new
commission by Executive Order, the Presidential Commission on
Election Administration.
Compare the two missions. The Acting Chairman correctly
stated the mission of the EAC, but according to the President's
Commission on Election Administration, the Commission , ``shall
identify best practices and otherwise make recommendations to
promote the efficient administration of elections in order to
ensure that all eligible voters have the opportunity to cast
their ballots without undue delay and to improve the experience
of voters facing other obstacles in casting their ballots, such
as members of the military, overseas voters, voters with
disabilities, and voters with limited English proficiency.''
Wait a minute. Is that not what the EAC is for? Do we need two
commissions for this? If President Obama does not think the EAC
can do its job, why is he making new nominations to it?
Even my majority colleagues here on this committee do not
seem to have much regard for the EAC, and fortunately, last
week, I received a letter from the Government Accountability
Office advising me that they were conducting a study into the
impact of voter ID requirements, alleged voter suppression in
Kansas and Tennessee. The study was initiated at the request of
some majority members of this committee, including its
Chairman.
So, think about that for a minute. We are here today
because the majority says we need to preserve the EAC, but when
majority members of this committee want a study done on a
voting issue, they do not think the EAC apparently is up to the
task. If they think the GAO is better able to do these studies,
why do we need the EAC? Or, if the EAC can do the job, why are
we writing the letter to the GAO?
This is a sad state of affairs. It is embarrassing to this
member. I think it is embarrassing to the Acting Chairman,
hopefully, maybe, or at least of interest. And the same for the
nominees.
If the majority sees the light, maybe we can finally both
eliminate this Commission and save the taxpayers some money, or
if the majority persists in pursuing these nominees through, we
may be back here for another confirmation hearing to ensure the
Commission maintains some measure of balance. Only time will
tell. I urge the Acting Chairman to talk with his leadership. I
have already talked with ours, and only time will tell, Mr.
Chairman.
Again, I apologize to the nominees.
Senator King. Thank you, Senator Roberts. I understand the
concerns that you raise and I think that is a--I think the
issues of the efficacy and continued necessity of the
Commission are ones that the committee should discuss, and I
certainly will use my best efforts to see that occur. But, as
you point out, we have the nominees before us today, and
perhaps part of their testimony can be helpful to us in
understanding the role of this Commission and how it can be
effective and important in improving election administration.
Chairman Schumer is unable to attend today's hearing. He
asked that I convey his congratulations and best wishes to both
of you, and without objection, I ask that his statement be
submitted for the record. Hearing none, Chairman Schumer's
statement will appear in the record.
[The prepared statement of Chairman Schumer was submitted
for the record:]
Senator King. We will now hear from our nominees, first,
Mr. Hicks, and then Ms. Perez. Your entire statements will be
entered into the record, so please limit your remarks to five
minutes and then we will have a chance to have some discussion.
Mr. Hicks, please proceed.
TESTIMONY OF THOMAS HICKS, OF VIRGINIA, NOMINATED TO BE A
MEMBER OF THE ELECTION ASSISTANCE COMMISSION FOR A TERM
EXPIRING DECEMBER 12, 2017
Mr. Hicks. Good morning, Chairman King, Ranking Member
Roberts. Thank you for holding this hearing on my nomination to
serve on the United States Election Assistance Commission. I am
truly honored to be a nominee to serve on the Commission. I
look forward to the opportunity to testify on my qualifications
and interest in becoming an EAC Commissioner.
I thank House Democratic Leader Nancy Pelosi for
resubmitting my name to the President and for the President for
submitting my nomination to the Senate. I thank members of the
Committee on House Administration for supporting my nomination,
including Ranking Member Bob Brady and past Ranking Members
Steny Hoyer and John Larson. I thank other members from both
sides of the aisle and chambers, a list that is too long to
enumerate, who have not only supported and encouraged my
nomination, but helped me throughout my career in Washington.
My interest in elections started as a child, when my mother
brought my brother and me into a voting booth and pulled the
lever. She gently reminded us that when she was growing up in
Southern Georgia, it was a lot harder for minorities to vote
than on that day when she voted for President Jimmy Carter. I
was able to share the story with President Carter a few years
ago. The ability to help facilitate access to our voting
systems, the cornerstone of our participatory system of
government, for all eligible Americans continues to be a strong
motivating factor in my career.
Over the last ten-plus years, I have worked at the
Committee on House Administration, the equivalent committee in
the House to Senate Rules and Administration. I interviewed for
the job the day after my oldest daughter was born. My primary
responsibility is advising and providing guidance to the
committee and members and caucus on election issues. Prior to
that, I worked at Common Cause, a nonpartisan, nonprofit
advocacy organization that empowers citizens to make their
voices heard in the political process and to hold the elected
leaders accountable to the public interest. I enjoy working
with State and local election officials, civil rights
organizations, and other stakeholders to improve the voting
process.
I believe in the Election Assistance Commission. I believe
in the primary mission of the agency, ensuring all eligible
Americans have the information needed to register to vote, cast
a ballot, and have that ballot counted. Whether those Americans
are voting in New Hampshire, Maine, California, Georgia, or
Afghanistan, they should have the same confidence that their
ballots are being counted. I believe our elections must be
administered in a manner that ensures accuracy while allowing
for openness and transparency. I also believe the process
should ensure malicious actions are prevented from influencing
the final outcome of our elections. This is a challenge that
must be accomplished with small budgets and without the option
of failure. Elections do not allow for do-overs. Above all
else, we must always uphold the public's trust and ensure
confidence in the process.
Through my present job of Senior Elections Counsel, I have
communicated with Americans in every State about voting
experiences. I have worked with State and local election
officials across America to address critical election concerns.
I have had a unique opportunity to work and speak with
Americans overseas concerning the obstacles they face in
registering to vote and casting their ballots. Should I be
confirmed, I will use this knowledge and experience in my role
as an EAC Commissioner.
I believe that, regardless of partisan ideology and
political affiliation, we all want the same thing, fair,
accurate elections where we are confident of the outcome and
all eligible Americans, domestic and overseas, are able to
participate in our process, the best in the world. Should I be
confirmed, I hope to use the lessons learned in life and my
experience to continue working to achieve this goal.
Lastly, I would like to thank my mother and father, both
now retired and enjoying the love and admiration of their
grandchildren, and I would also like to acknowledge, again, my
three children, Elizabeth, 10, Megan, 7, and Eddie, 5. I am
most gratified that their experiences with voting and
participating in our electoral system will be far different
from that of their grandmother.
Thank you, and I will be happy to answer any and all
questions.
[The prepared statement of Mr. Hicks submitted for the
record:]
Senator King. Thank you, Mr. Hicks.
Ms. Perez, your statement, please.
TESTIMONY OF MYRNA PEREZ, OF TEXAS, NOMINATED TO BE A MEMBER OF
THE ELECTION ASSISTANCE COMMISSION FOR A TERM EXPIRING DECEMBER
12, 2015
Ms. Perez. Thank you, Senator King. Thank you, Senator
Roberts. Thank you for holding this hearing and giving me the
opportunity to discuss with you my qualifications to serve on
the U.S. Election Assistance Commission. I care deeply about
the fair, impartial, and accurate administration of elections
and I would be honored at the chance to serve, should the
Senate choose to confirm my nomination.
I have been extremely fortunate in my life and career. I am
a native Texan, a resident of New Jersey, and a lawyer working
in New York City. My parents were born in Mexico and moved to
the United States as children and grew up with limited means.
They raised me and my brother to be proud Americans in an
environment which respected public service. My father served in
the U.S. Air Force and worked many years for county government.
My mother works for the U.S. Postal Service. And they made
possible my ability to attend Yale College, Harvard
University's School of Government, my ability to attend law
school at Columbia, and for my brother to pursue a career in
law enforcement.
I have been given a great many gifts and I believe that
responsible stewardship of those gifts means I must explore
opportunities to use my good fortune in service of others,
whether it be by correcting Bible study lessons for people in
prison, or serving breakfasts to those in my neighborhood who
are food insecure, or in a variety of many other ways through
my professional experiences in the private, nonprofit, and
government sector.
It is with great gratitude that I experience your
consideration for the opportunity to serve my country and the
democratic principles for which it stands.
Elections are the cornerstone of our democracy and all
Americans have an interest in their efficient and secure
administration. Administering elections, however, is a
difficult task. State and Federal election laws governing
election administration are complicated. Resources for election
administration are scarce. The technology is always changing.
And it can be challenging to inoculate the administration of
elections from the politics of elections.
The EAC's mission, in my view, is to provide resources and
reliable information to election administrators and voters on
issues of election administration. I believe I can further that
mission because I understand election administration from a
variety of perspectives.
My interest in voting and election administration started
the summer in college that I worked for my county's election
administration office, processing registration forms and
identifying potential polling locations. Professionally, as a
Deputy Director of the Democracy Program and the Director of
the Voting Rights and Election Project at the nonpartisan
Brennan Center for Justice at NYU's School of Law, I represent
voters, talk frequently with election administrators, study
Federal and State election laws, and research election
practices.
Congress gave the EAC the duties of conducting research,
collecting and disseminating information, certifying voting
systems, and maintaining the Federal form. I have certain
skills which I think will be very useful to the EAC in
performing these duties, if I am confirmed.
First, I have substantial experience in researching and
collecting and disseminating information. I was a Policy
Analyst for the GAO and I had to perform qualitative and
quantitative research on issues requested by Congress. At the
Brennan Center, I conduct research on election administration
and I have to pay close attention to methodologies and make
information accessible to a variety of audiences.
I also have a deep subject matter knowledge on issues
related to election administration. I have spent the better
part of the past seven years working on issues related to
election administration, from list maintenance efforts to
statewide voter registration databases. And while my focus has
been on the experiences of voters, one cannot effectively serve
voters without understanding the realities faced by election
administrators.
Finally, I have strong strategic and public management
skills. In my personal and professional life, I have worked for
organizations where resources are limited, the organizational
purpose has been defined, and the operational environment has
been key to mission achievement, very much like the EAC.
It would be premature for me to commit to any particular
course of action without being more familiar with the internal
workings of the EAC and talking with State and local election
administrators who are the end users of the EAC services, but I
can tell you that, if confirmed, my approach to my role and
duties would reflect the following.
A clear understanding of the role of the EAC. State and
Federal laws govern election administration, not the EAC. It is
my view that the EAC will function best if it focuses on the
nuts and bolts of election administration and is not distracted
by questions that are best suited for the legislatures and the
courts.
A desire to work closely with election administrators. I
have a great deal of respect for the work that they do, and
part of my job involves learning from them on almost a daily
basis.
A responsible attitude toward public funds. These are tough
fiscal times and I will expect the EAC to use its resources
effectively and thoughtfully. I will work with others to make
sure that its administration is top notch.
And, finally, a respect for data. My work on election
administration is guided by research about what works and what
does not. I would ensure that any advice and assistance
provided to election administrators be thoughtful and well
researched.
A significant part of my career has been dedicated to
protecting and preserving the right to vote and improving our
election system. As a voter, as a person who has represented
voters, I know that election administration is critically
important to our democracy. The EAC, if operating well, is a
valuable resource to election administrators because of its
nationwide scope, targeted focus, and expressly delineated
responsibilities.
If confirmed, I would look forward to working
collaboratively with the members of this committee to achieve
the goal of an efficient and effective EAC.
Thank you for this opportunity to appear before you today,
and I am very pleased to respond to questions.
[The prepared statement of Ms. Perez was submitted for the
record:]
Senator King. Each of us will have a round of questions.
This is an unusual situation in that--I cannot speak for my
colleague, but for myself, each of you is superbly qualified by
a variety of different backgrounds and, I think, complement one
another. The issue, really, is the effectiveness and the
necessity for the Commission. So, that is what I want to
address my questions to.
I would like to ask both of you, let us change the focus of
this hearing from you to the Commission, and the basic question
before us that I think is going to be discussed on an ongoing
basis is why we need this Commission and what role do you think
that it plays in our democratic system. Mr. Hicks, do you want
to tackle that.
Mr. Hicks. Thank you, Chairman King. The Commission is
still needed. We have elections every two years, and every two
years, there are similar problems that occur. Ranking Member
Roberts talked a little bit about the President having a
Commission on Elections, as well, but the truth of that is that
the commission only exists for six months. They are tasked with
a very narrow scope of issues that they have to face, mostly
long lines.
The EAC delves into all sorts of aspects in the
administration of elections. They are the only place in the
Federal Government that certifies voting equipment. They are
the only place that is the clearinghouse for a lot of the
information that State and local election officials depend upon
in their smaller budgets to get out to their constituents and
make their elections run more effectively.
The agency itself, like all Federal agencies, has certain
problems that I think need to be addressed, and if I am
confirmed, I hope to address those problems. One of the added
features that I have had the opportunity to work on in my role
as Senior Elections Counsel and observed from afar, because I
have had to recuse myself from a lot of these things, is the
fact that our committee, the Democrats on the committee offered
a bill to reform the EAC to address a lot of the problems that
Senator Roberts addressed and a lot of the other members have
talked about. So, I think that looking at reforming the agency
in the way that makes it more effective to address the needs
that the American people have, because we are not running
elections as we were ten years ago and those problems that were
occurring in Florida.
There are people who still support the agency, a lot of
State and local election officials, a lot of Democrats, and
some Republicans, as well, and I hope to be confirmed so that
we can move the agency forward.
Senator King. Ms. Perez, would you like to make a statement
on--not on your own qualifications, which are impressive, but
on the importance of the agency as you have studied and
reviewed it.
Ms. Perez. Certainly, Senator King. Our elections are a
source of national pride and international inspiration, and we
have our election administrators, thousands of them at the
State and local level across the country to thank. And,
currently, they are under-resourced. In these tight fiscal
times, their budgets are increasingly being cut and yet
elections are dynamic. It is constantly changing. The
technology is changing. The laws that they operate under are
changing. They have staff turnover. And they simply do not have
the resources to be able to perform all of their incredibly
important functions.
A national organization is incredibly useful, if it is
operating well, to the achievement of that task. Its national
scope allows it to have a birdseye view and connect far flung
offices such that best practices can be shared, ideas for
innovation can be shared, people can learn what it is that they
do not know and the way some of their partners in other States
are handling some of the important matters of the day.
Beyond that, there are economies of scale and economies of
scope that accrue when you have one national organization doing
incredibly resource-intensive activities, and I am thinking
primarily of voting system certification. It should not be the
case that we need to reinvent the wheel 50 times and have each
State come up with its own system of testing and certification,
just for something as foundational as making sure that our
voting systems are secure and reliable.
The EAC has the opportunity to be able to provide important
resources for State and local election officials at a time
where they need those resources and when the American public is
demanding good customer service in the realm of election
administration.
Senator King. As I understand both of your answers, the
agency is not regulatory in the sense of issuing regulations
that are binding on States or localities. It is more
information providing and then the function that you just
mentioned, of being the kind of Underwriter Laboratories of
voting machines. Is that accurate, that it is not a regulatory
agency?
Ms. Perez. Certainly, the enabling legislation sets forth a
number of responsibilities, including conducting studies,
serving as a clearinghouse, maintaining the Federal form, and
certifying voting systems. The EAC does not set policy, but it
does provide resources to election administrators who have a
very difficult task that is constantly changing in a dynamic
environment.
Senator King. Mr. Hicks.
Mr. Hicks. The only piece I would add is that the EAC does
have a small piece of regulatory authority with the National
Voter Registration Act, and that is it. All the other pieces
are just basically providing guidance and resources to the
States.
Senator King. Senator Roberts.
Senator Roberts. Well, thank you both for your statements
and for coming.
Mr. Chairman, the EAC has been in operation since 2002, I
think. The primary purpose, as I recall, was to distribute
grants to States so they can better serve their people with
regard to voter participation and to eliminate voter fraud and
the sanctity of the ballot. But those funds are not forthcoming
anymore and those grants have been distributed.
Again, I remember taking part in the Motor Voter
legislation. Al Swift, a Democrat friend of mine from
Washington, and myself, as the Ranking Member then in the
House, we had considerable debate.
I just mention this to--I wish we could have a real hearing
with regard to the need for the EAC. I am not trying to
denigrate it, I am just saying we have never done that.
Let me just ask the question of both of you: Do you agree
the EAC must operate in a bipartisan fashion? Obviously, the
answer to that is yes. We can get past that pretty quickly,
probably. But, how would you work toward that goal if the
leadership on both sides can come to some kind of an agreement
as to whether we go forward or whether we have a hearing and
get you in a position--I know you have been at work, but in
terms of being truly effective with the mission of the EAC as
envisioned. Again, I have to apologize to you, but how would
you do that? How would you work toward that goal?
Mr. Hicks, do you want to try that one on?
Mr. Hicks. Thank you, sir. One of the unique opportunities
that I have had in my life is when I worked at Common Cause and
working on the Help America Vote Act. That piece of legislation
was passed--it was the quickest civil rights piece of
legislation ever passed in history, to my knowledge. And the
way that it passed, it did not pass with just Republican
support. It did not pass with just Democratic support. It
passed with House support. It passed with Senate support. It
passed 98 to 2 in the Senate. And we brought everyone into the
room, where we had civil rights organizations, we had State and
local election officials, we had voter integrity groups come
in, and we had good government groups come in. The only way
that it was able to pass was because everyone was in the room
and everyone was able to talk and get their information out and
get those issues on the board.
And I think that in order for this to truly work, we have
to have bipartisan support and we have to have Democrats, we
have to have Republicans, we have to have Independents. And I
think that is why I have not given up my nomination. I have
been in a holding pattern for three-and-a-half years, and I
believe in the agency. I believe that it can work effectively.
And I believe that for me just to give up would be me just
turning over and saying, I quit, which I cannot do. I believe
that the agency can work, but it has to work in a bipartisan
manner.
Senator Roberts. I appreciate that very much. Ms. Perez.
Ms. Perez. I think there is no dispute among any American
that we need elections to be fair, impartial, accurate, and
secure, and I believe that there is significant common ground
that can be achieved by focusing on the core mission of the
EAC, which is to provide resources and information to the local
election administrators who are trying to do an incredibly
important task and are under-resourced in doing so.
I think the best way for the EAC to function is, again, to
focus on the nuts and bolts of election administration, to look
for best practices on how you find polling locations, how do
you train poll workers, how do you send out election notices,
how do you certify election results. And I do not think there
is significant disagreement among people of any political
background that these tasks are vitally important.
The way that I would proceed is the way that I proceed in
my practice, which is with a collaborative spirit, an open
mind, and approaching information with respect to data and
evidence, talking to all of the stakeholders, and trying to
achieve and celebrate the common ground when it is found.
Senator Roberts. I appreciate that, and thank you for your
comments.
Let me just point out the EAC has been forced to make
payments to victims of hiring discrimination in the past, in
one case, the discrimination against a candidate on the basis
of party affiliation, and another due to military service
status. If confirmed, how would you handle this kind of
situation so we would not see a reoccurrence of these kind of
episodes? We will do it in reverse. Ms. Perez.
Ms. Perez. I think one important way is to be very clear
about State and Federal laws and best practices with respect to
hiring. I think it is incredibly important to focus on the
qualifications and to focus on the mission. Personal attributes
and backgrounds, those kinds of things, are not relevant to the
tasks that the EAC needs to perform.
I was not there when that happened and I do not know all of
the details, but I can assure you that I have a strong interest
in making sure that the open positions are filled by the
highest-caliber people and to ensure that the management of the
EAC is top notch and that the public feels very confident that
its taxpayer dollars are being well spent and in an appropriate
and fair manner.
Senator Roberts. Mr. Hicks.
Mr. Hicks. I believe that it is going to be a challenge to
ensure that we have the best-qualified candidates for any
position at the EAC. The agency has taken so many hits over the
years in terms of financial and other problems that they have
faced. I think that with any sort of candidate that comes
before the Commission, they should be evaluated under the law
and the best way that HR's provisions establish.
Senator Roberts. I appreciate that.
Let me just say that both of you, I think, have indicated
that the EAC should have an advisory mission as opposed to more
of a regulatory agency. Am I correct in assuming that is the
case? Ms. Perez.
Ms. Perez. Congress has set forth the EAC's duties, and its
primary duties are to provide resources and information.
``Advisory'' is even a different word than I would use. It
serves as a clearinghouse function. It brings people together.
It allows election administrators to hear how other people are
handling similar problems in their States. It performs studies
that are designed to assist election administrators with the
jobs that they do.
It does have a couple of functions with respect to
certifying voting systems and the maintenance of the Federal
form, but the primary responsibility, in my mind, of the EAC is
to provide accurate, cutting edge, and needed data and
information that election administrators want in order to be
able to provide good customer service to their voters.
Senator Roberts. And with that information, they would make
their own decisions, hopefully. Mr. Hicks.
Mr. Hicks. I believe that the agency's functions are
spelled out in HAVA correctly, and I think that unless Congress
expands those, that we should follow the only roles that the
Commission has set out in the law.
Senator Roberts. I appreciate that. Mr. Chairman, just on a
personal note, since the GAO apparently will be making some
advisory comments, hopefully, with the State of Tennessee and
Kansas, and I think perhaps Indiana, maybe Arizona, this issue
is extremely important to me. My great-grandfathers came to
Kansas before it was a State. One established the second-oldest
newspaper and the other about the fourth. They did not
particularly care for each other, and they wrote editorials
that would make both of us blush with the adjectives and
adverbs used back in the day. We think it is tough today. You
should see those.
But the one thing that they were committed to is that they
came as abolitionists and they fought through bleeding Kansas.
Both newspapers were threatened by Quantrell when he rode in
from Missouri.
I mention this personal history only that we have a
commitment in Kansas with regard to ballot sanctity and with
regard to voter access that, I think, represents a very fine
effort to try to follow through with that historical
precedence. So, for me personally, I think I want to indicate
how strongly I feel about this.
Thank you for appearing. Again, I wish we had better
direction for you. Both of us will work on that, so I truly
appreciate it. Thank you so much.
Senator King. I want to also thank you, and I think you
have presented yourself very well today and been helpful to us,
and now it is our job to find a way to move forward.
It is my understanding that a quorum requires more than
just two members, is that correct? So, you cannot act--if the
two of you are confirmed, you could still not act as the
Commission, lacking a Republican--actually, two Republican
members, is that correct?
Ms. Perez. Yes.
Mr. Hicks. [Shaking head.]
Senator King. Okay. Well, we have some work to do
ourselves, but I want to sincerely express my appreciation on
behalf of myself and Senator Roberts to your commitment and
willingness to step forward in these somewhat difficult
circumstances.
I also notice your very young man has joined us and I want
to welcome him to probably his first hearing in the United
States Senate.
Again, I want to thank both of you and we are going to be
meeting as a committee to talk about some of these issues to
see if we cannot resolve the differences between the two
parties and get this Commission into a place where it can
perform the function that the Congress has assigned it and
protect this basic important right of all Americans to vote.
Before we close, I have one other matter. The Chairman and
the Ranking Member have received a report from committee staff
regarding a petition contesting the special election that took
place in New Jersey on October 16, 2013. This petition was
referred to the committee on October 28, 2013. Committee staff
for both the majority and the minority reviewed the petition,
found it to be without merit, and concluded that further
consideration by the committee is not warranted. Without
objection, the committee adopts the staff recommendation and
will take no further action on the petition.
Thank you, again, to both of you. Thank you for your
families.
The record will remain open for five business days for
additional statements and comments and post-hearing questions
submitted in writing for the nominees to answer.
Again, thank you very much for joining us here this
morning, and since there is no further business to come before
the committee, the committee meeting this morning is adjourned.
[Whereupon, at 10:44 a.m., the committee was adjourned.]
APPENDIX MATERIAL SUBMITTED
----------
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
HEARING--SENTRI ACT (S. 1728) IMPROVING
VOTER REGISTRATION AND VOTING.
OPPORTUNITIES FOR MILITARY.
AND OVERSEAS VOTERS
----------
WEDNESDAY, JANUARY 29, 2014
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The Committee met, pursuant to notice, at 10:01 a.m., in
Room SR-301, Russell Senate Office Building, Hon. Charles E.
Schumer, Chairman of the Committee, presiding.
Present: Senators Schumer, King, Roberts and Blunt.
Staff Present: Jean Bordewich, Staff Director; Stacy
Ettinger, Chief Counsel; Veronica Gillespie, Elections Counsel;
Benjamin Hovland, Senior Counsel; Ellen Zeng, Counsel; Phillip
Rumsey, Legislative Correspondent; Lynden Armstrong, Chief
Clerk; Matthew McGowan, Professional Staff; Lean Alwood, Chief
Auditor; Mary Jones, Republican Staff Director; Shaun Parkin,
Republican Deputy Staff Director; Paul Vinovich, Republican
Chief Counsel; and Rachel Creviston, Republican Professional
Staff.
OPENING STATEMENT OF SENATOR KING
Senator King. The Rules Committee will come to order.
Good morning, and I see that our--well, if you--oh, let's
have our witnesses take their seats at the table.
Our hearing today is on the SENTRI Act, legislation
intended to improve voter registration and voting opportunities
for military and overseas voters.
I am Angus King, Senator from Maine, sitting in at the
beginning of today's hearing for Senator Schumer, who is at a
meeting of the Judiciary Committee. He will be joining us a
little bit later.
With me is Senator Roberts of Kansas, who is the Ranking
Member of this Committee, and we will proceed.
Voting is our most fundamental democratic right. Today we
are going to discuss legislation which is aimed at ensuring
that members of our military and other American citizens who
are overseas are able to cast a ballot and participate in our
democracy.
Americans who are on the other side of the world clearly
face barriers to voting that most of here in this country do
not. Congress has previously passed two pieces of legislation
to improve access and participation for our military and
overseas populations.
The first was the Uniformed and Overseas Citizens Absentee
Voting Act, known as UOCAVA, and that was passed in 1986.
And, as with most legislation--all legislation, in my
experience--after implementation, we learned that improvements
can and should be made. This is particularly true where
advancements in technology allow for new innovation and can
help modernize existing practices. With these factors in mind,
many improvements were made to the UOCAVA legislation in 2009
with the passage of the Military and Overseas Voter Empowerment
Act.
Reports from the 2012 general election, however, show that
only 70 percent of the ballots sent to military and nonmilitary
voters were returned--only 70 percent. On top of that, many of
the ballots that were returned were unable to be counted
because they arrived after the deadline.
We think we can do better than this. We must do whatever we
can to ensure that the men and women who serve our country in
uniform are not disenfranchised by unnecessary administrative
barriers.
I am also a member of the Armed Services Subcommittee on
Personnel, and this is an issue which I take very seriously.
The SENTRI Act builds on past legislation to provide many
of the solutions that our military and overseas voters deserve.
This bipartisan bill makes improvements to military and
overseas voting that I believe Congress can reach agreement on.
The SENTRI Act provides important safeguards to the right
to vote for military and overseas voters in a number of ways.
First, the SENTRI Act improves voter registration and
voting opportunities for service members through the use of an
online system, certainly not part of the original Act in 1986.
It requires voter assistance as a routine part of service
members' annual training. Simplifying, streamlining and
reducing the time associated with voter registration will
ensure that more of our citizens overseas are able to vote in
future elections.
Also, this legislation ensures requests for absentee
ballots remain valid for one full Federal election cycle,
thereby eliminating some of the confusion and variance in
implementation that has been seen across the country.
Another important feature of the SENTRI Act requires
reporting on implementation and effectiveness of new voter
assistance obligations that would allow for better monitoring
and deeper understanding of the voting experience of our
military and overseas citizens.
Overall, the SENTRI Act strengthens protections of voting
rights of military and overseas voters. For this reason and
others, the SENTRI Act enjoys support from a number of
nonpartisan organizations dedicating to serving members of our
military, veterans and protecting the right to vote for all
Americans.
I am proud to be a co-sponsor of this important piece of
legislation, and I would like to thank everyone who is able to
join us today to discuss this topic, and I look forward to
hearing the testimony of the experts on our panel.
Now I would like to turn to Senator Roberts for his opening
remarks.
OPENING STATEMENT OF SENATOR ROBERTS
Senator Roberts. Why thank you, Mr. Chairman. I appreciate
your willingness to preside here again so we can stay on
schedule.
I want to thank the witnesses for agreeing to testify, and
I look forward to their remarks.
I also want to thank my friend, John Cornyn, for his work
on this issue. I look forward to hearing from him later.
We have a good panel of witnesses before us, and I want to
hear from them. So I will not take up too much time.
I am glad we have witnesses from both the Federal and state
agencies because they have to work together to ensure our
service personnel are able to vote and have that vote counted.
As a Marine, I obviously care deeply about those who serve
us abroad and want to make sure we are doing everything
possible to make sure that those who wish to vote are able to
do so.
This Committee produced, as the Acting Chairman indicated,
the Military and Overseas Voter Empowerment Act, the MOVE Act,
in 2009, to make sure ballots were sent out in sufficient time
for them to be received and returned in time to be counted. Now
we have gone through two general elections since those
requirements went into effect, and it appears some problems
remain.
The question is where those problems lie and what really
needs to be done to address them. Is the problem at the state
and local level, or the Federal level, or both?
I hope our hearing today will shed some light on that
question. We need to know where the problem is before we can
figure out how to fix it.
The SENTRI bill proposes some changes at both the state and
Federal levels. I look forward to its consideration and the
testimony of our witnesses here today.
Thank you, Mr. Chairman.
Senator King. Senator Blunt, we are just getting underway.
If you would like to make a statement, we would be delighted to
hear from you.
OPENING STATEMENT OF SENATOR BLUNT
Senator Blunt. Mr. Chairman, I have a statement for the
record.
This is obviously an important issue. It is one that when I
was the chief election official in Missouri for eight years,
and the secretary of state, I was very involved in.
I hope we can continue to find things that ensure that
people who are serving in the military not only get to cast
their votes but get that vote counted, get it back in a way
that gets it counted.
And I look forward to the testimony, and I am glad that we
are talking about this bill.
[The prepared statement of Senator Blunt was submitted for
the record:]
Senator King. Thank you.
We will move to our first panel, who is at the table.
We have Mr. Matt Boehmer--we are going to go in
alphabetical order--Director of the Federal Voting Assistance
Program in the U.S. Department of Defense. Second is Mr. Kevin
Kennedy, the Director and General Counsel of the Wisconsin
Government Accountability Board, and third, Mr. Donald Palmer,
the Secretary of the Board of the Virginia Board of Elections.
Thank you all, gentlemen, for joining us today.
And I would like to ask, if you possibly can, to limit your
statements to five minutes, and if you have provided the
Committee with a longer written statement, we would be
delighted to accept that for the record.
Mr. Boehmer, please proceed.
STATEMENT OF MATT BOEHMER, DIRECTOR, FEDERAL VOTING ASSISTANCE
PROGRAM, U.S. DEPARTMENT OF DEFENSE, WASHINGTON, D.C.
Mr. Boehmer. Chairman King, Ranking Member Roberts and
distinguished members of the Committee, thank you for the
opportunity to discuss the Department of Defense's voting
assistance activities and our view on the SENTRI Act.
Senator Cornyn and Senator Schumer, for the record, thank
you for your continued commitment to our men and women in
uniform.
As Congress and the courts have repeatedly affirmed, voting
is a citizen's most fundamental right.
The Federal voting assistance program is committed to two
voting assistance tenets--promoting the awareness of the right
to vote and eliminating barriers for those who choose to
exercise that right.
Last year, FVAP and the Department exemplified this
commitment by advancing three major initiatives--creating a
robust information portal, implementing greater voter
assistance capabilities and commencing work to increase the
efficiency of mail delivery.
We recently optimized our web site, which is FVAP.gov, by
reorganizing content to enhance the user experience,
implementing a section of the portal to track performance
metrics for our voting assistance officers and updating online
training which will be released in the early spring of 2014.
To improve our voting assistance capabilities, FVAP created
a suite of materials in 2013 to provide absentee voter-specific
information.
We are also providing online and in-person trainings for
our voter assistance officers and election officials to make
sure they are prepared to assist our UOCAVA voters.
Realizing that the time required to redirect mail once
overseas may serve as a hindrance to casting an absentee
ballot, the Military Postal Service Agency is serving as the
lead agency in an effort with the Department of State and the
United States Postal Service to lead an effort to modernize
military mail delivery. The system will redirect election
materials to military and diplomatic addresses, similar to how
the civilian change of address system works, and should be
available in October of 2014.
These activities illustrate the continuous work of the
Department, and the proposals in the SENTRI bill enhance the
notion of change and offer some real benefits to our UOCAVA
voters.
The Department supports the initiatives in the SENTRI bill
as written. However, we would like to work with the Committee
to clarify some of the technical requirements to make sure that
we are successful in meeting the intent of the bill.
FVAP is already working to address some of the initiatives
listed in SENTRI.
We currently link voters to state systems where they are
available.
And, we are working with an internal department system to
prompt service members when they update their address to
complete a new Federal Post Card Application upon every single
address update.
We are also willing and capable to create an annual
training by the 2016 general election for our active duty
military members, which would then lead them to FVAP.gov to
complete a new FPCA or to decline assistance. We would then be
able to provide you with the aggregate numbers on the users who
chose to go to FVAP.gov for assistance and for those who
declined.
The language in Section 201, which requires electronic
transmission of a completed FPCA by the Department to the
appropriate state and local election officials, is where we
have our greatest concern. The bill, as written, appears to
focus entirely on an electronic process which would prove
costly and could be incompatible with the 55 states' and
territories' election rules, specifically in regard to the
different rules governing physical signatures and the approved
method of transmission of elections.
Removing this requirement would remedy the Department's
concern with this section and recognize the role of states to
field their own systems and offer electronic voter
registration. The cost associated with the requirement to
simply pre-populate our forms would be relatively low.
Senator King, Ranking Member Roberts and the Committee,
thank you for the opportunity to share the Department's view on
the SENTRI Act. We appreciate the Congress's ongoing interest
in improving military voting. I look forward to your questions.
[The prepared statement of Mr. Boehmer was submitted for
the record:]
Senator King. Thank you, Mr. Boehmer.
I presume you will give to the Committee the details of the
suggestions you have on those matters that you just mentioned.
Mr. Boehmer. Absolutely, sir. Thank you.
Senator King. I appreciate it.
Mr. Kennedy.
STATEMENT OF KEVIN KENNEDY, DIRECTOR AND GENERAL COUNSEL,
WISCONSIN GOVERNMENT ACCOUNTABILITY BOARD, MADISON, WI
Mr. Kennedy. Thank you, Chairman King, Ranking Member
Roberts and distinguished Committee members. I appreciate the
opportunity to provide information to this Senate Committee on
the SENTRI Act.
A little bit of background. I am Wisconsin's Chief Election
Officer. I am a nonpartisan, appointed official and have served
in that capacity for more than 30 years.
Wisconsin has been--I am also a former president of the
National Association of State Election Directors.
Wisconsin has been a leader in making changes to facilitate
voting for our military and overseas voters. In Wisconsin, we
administer our elections at the local level. I have 1,852 local
election officials who are responsible for getting the ballots
out to all of our voters, including our UOCAVA voters.
We have developed an electronic delivery system that we put
in place in 2012 that has cut the ballot transit in time and
allowed us, even when some of those clerks fail, to ensure that
ballots are delivered and returned in time for counting before
the election.
When you are herding a group of cats, such as we often do,
we find some human failings, but we have found with our
electronic ballot delivery system, even with a handful of
ballots that might have missed what was then the 45-day
deadline, we were still able to get the ballots back in time.
The SENTRI Act makes a number of reforms and improvements
to safeguard elections, and the spirit behind these reforms and
improvements is commendable and has the support of state
election officials. However, implementation of some aspects of
these reforms, while not insurmountable, could be problematic.
For example, with data collection, the time frames for
collecting and reporting data present challenges, especially
around the deadline for transmitting ballots--46 days before
the election.
If a Federal election is held on a Tuesday, as is the norm,
day 46 is always a Friday. This means local election officials
are scrambling to get the UOCAVA ballot requests filled before
the mail goes out. The next two days are not business days.
Yet, state officials must collect and compile data from local
election officials and submit a report on the Monday following
the transmission deadline.
This is particularly challenging for a state like
Wisconsin, and other states, where the municipal election
officials are responsible for fulfilling UOCAVA absentee ballot
requests.
The SENTRI Act provides for express delivery of ballots
that are not transmitted by the deadline.
We can still effectively implement the reporting deadline
if we move it to 5 or 7 days after the 46-day deadline. This is
particularly true when the UOCAVA voter has requested to
receive the ballot electronically. Because the SENTRI Act
provides for express delivery of ballots that are not
transmitted by that 46-day deadline, the required information
would still be captured with a slightly later reporting
deadline, but it would also have the advantage that it would
not be an incomplete report.
What you are going to get under the current provisions is a
report, if there are failures, of incompleteness.
If we postpone that deadline by two or four more business
days, what you will get is a report that tells you if the
ballots were not delivered, how that was remedied, because the
SENTRI Act provides for the express. Instead of having several
reports, you will get one complete report, and the Department
of Justice and the Federal Voting Assistance Program will know
where there was a problem but also how that problem was solved.
So I really encourage you, instead of having that day 43
reporting, that it be day 41 or, even better, day 39 because
you will get one report that will be much more complete.
Our goal has been to make it as easy as possible for our
local election officials to complete the reporting requirement
so that they can maximize the time they spend serving the
voters as we do at the state level.
Another suggestion is that the Department of Defense and
the U.S. Elections Assistance Commission have coordinated their
collection of post-election data. Yet, there are two different
deadlines for filing and getting that information. I would
suggest that rather than the 90-day deadline we have currently
that we dovetail that with the deadline that is available for
reporting to the U.S. Elections Assistance Commission.
As has been said, elections are the cornerstone of our
democracy. A citizen's right to vote is one of our most
enduring principles. Our uniformed services and overseas voters
make extreme sacrifices to protect that right for us. They
deserve the commitment and effort of all of our public
officials to enable them to fully participate in the electoral
process.
I appreciate the opportunity to share my thoughts with you,
and I would be happy to answer any questions Committee members
have.
[The prepared statement of Mr. Kennedy was submitted for
the record:]
Senator King. Thank you, Mr. Kennedy.
Your testimony about what day election day is allows me,
perhaps for the only time in my service in this body, to share
one bit of knowledge that I have carried around for a long
time.
Do you know the definition of when a presidential election
occurs? It is the first Tuesday after the first Monday in
November of every even-numbered year, equally divisible by
four.
[Laughter.]
Senator King. Isn't that a wonderful rule to have?
Mr. Kennedy. That is a great rule.
Senator King. I am afraid that may be taking up room in my
brain for other more useful things, but--Mr. Palmer, please.
STATEMENT OF DON PALMER, SECRETARY OF THE BOARD, VIRGINIA BOARD
OF ELECTIONS, RICHMOND, VA
Mr. Palmer. Thank you, Chairman King, Ranking Member
Roberts and members of the Committee. Thank you for the
opportunity to testify today on the SENTRI Act, which continues
the improvements to the military voting process under the MOVE
Act.
The recent release of the report from the Presidential
Commission on Election Administration noted the continued
difficulties of UOCAVA voters in registering to vote, receiving
their ballots in a timely manner and returning their ballots to
election officials in time to be counted.
The SENTRI Act recognizes that military voters have lower
registration and participation rates and much lower rates of
absentee ballots that are successfully returned and counted.
The rate of successful return for overseas military ballots
remains in the high 60s while the successful return of domestic
absentee ballots is closer to 98 percent.
In a world full of technology, we must not forget the very
human purpose of this legislation, and that is to allow all
members of the republic to vote, no matter where they are on
the globe.
The Presidential Commission also noted the difficult
situation that UOCAVA voters continue to find themselves. The
sponsors of the SENTRI Act have shown focus and foresight to
determine where the MOVE Act is succeeding and where it must be
amended. While the language was drafted well before the
Commission report, the legislation reflects many of the
bipartisan recommendations on how to improve that registration
and absentee ballot process.
The Presidential Commission also specifically called for
online mechanisms for UOCAVA voters to easily and quickly
update their address or registration status. The SENTRI Act
requires annual voter assistance and updates of registration
data by the military member with online tools. DoD would
facilitate the update of registration information at the same
time that members would normally update their information due
to deployments, overseas duty or changes in duty station or
some other change in status.
Based on my military experience, there are more than a
dozen different forms that must be updated online each year,
not only before deployment or a new duty station but for
training purposes or for a calendar, or fiscal, new year. This
process should fit nicely into existing procedures for updating
materials.
The Commission noted in its report that military and
overseas voters represent the population most likely to benefit
from the increased use of the internet and the registration
process. And, again, DoD members are a very mobile population
of voters. Because of this mobility, inaccurate addresses and
information lead to significant delays in ballots reaching the
military or result in undeliverable ballots where the ballots
never reach the voter at all.
The SENTRI Act would provide online mechanisms to maintain
accurate voter registration information on UOCAVA voters for
the benefit of all state and local election officials.
My experience with electronic registration in Virginia
shows that an online process can be secure with appropriate
verification of identity and will improve the overall integrity
of the registration process and voter rolls.
The Presidential Commission specifically recommended the
data exchange of voter registration information between states.
Data from other states allow state and local election officials
to maintain accurate voter rolls by keeping up with a mobile
population. Similarly, any DoD system that provides a
consistent and reliable flow of updated data for military
voters would dramatically increase the accuracy of the
registration data at the local and state levels.
The Commission also noted that compliance with UOCAVA and
the MOVE Act for military and overseas voters continues to be
inconsistent and inadequate, and enforcement must be
strengthened.
The SENTRI Act does provide special rules in the case of
failure by state or local officials to transmit their ballots
on time. Despite good efforts, there have been some failures in
2010 and 2012. State election officials often do not have the
authority to require local election officials to report the
transmission of ballots and are not aware of failures.
As time goes by, jurisdictions get better with this
process. However, the failures have resulted in a great deal of
litigation.
The SENTRI Act may resolve the litigious nature of the MOVE
Act. The law would require jurisdictions to automatically send
ballots by express delivery if they fail to meet the 45-day
deadline. The proposed law would reduce the amount of lawsuits
by immediately providing a built-in remedy for the voter.
Federal law would prioritize the express transmittal of the
ballot over waiting for post-election litigation and
appropriate judicial relief.
The SENTRI Act is a bipartisan piece of legislation on
which election community has been consulted on a number of
occasions. The authors have responded to the input of state and
local election officials and other stakeholders. Many sections
of this bill are aligned with the major bipartisan
recommendations of the Presidential Commission.
In my estimation, the use of technology, data-sharing and
other common-sense reforms will help UOCAVA voters more
efficiently register and request absentee ballots, improve the
integrity of UOCAVA registration data and improve election
administration in the United States.
Thank you for the opportunity to testify on this important
issue.
[The prepared statement of Mr. Palmer was submitted for the
record:]
Senator King. Thank you, gentlemen.
We will now have a five-minute round of questions, and
there will be, hopefully, some opportunity for follow-up.
Mr. Kennedy, you testified about the deadlines and moving
the 46 days to 39 or some other number.
I guess the first issue is, is there an issue with making
that change?
It seems sort of straightforward. But, is there a counter
argument as to why not to shorten those deadlines or, actually,
lengthen them?
Mr. Kennedy. Well, the main argument would be to have the
data as quickly as possible, but I think what cuts against that
argument--you know, to have the data in the hands of the
Department of Justice and the Federal Voting Assistance
Program.
What cuts against that--and I base this on our experience
from 2012--is that if there has been a failure, that
information is going to be incomplete and the state officials
are going to be working hard to remedy this.
I think Mr. Palmer made the point--and I tried to as well--
that we have built in remedies that normally would be part of
litigation or a discussion. And, by moving that deadline by two
days, we are going to give one report that is going to say the
ballots were sent out, or if they were not, this is what was
done to make sure that they got sent out even though they
missed the 46-day deadline.
Senator King. Is there any cost on the local election
officials to implementing this whole structure?
Mr. Kennedy. It is a time cost. As I said, they are busy
trying to make sure that they fulfill the absentee ballots. It
is a matter of how much time they have.
We have built in Wisconsin a very good data collection tool
which we will refine to ensure that we have that. As I said, we
spent a lot of time in Wisconsin with a handful of
municipalities that were difficult to track down, contacting
them by e-mail, phone, to make sure that they got their data
into us. That is really the challenge--is making sure that that
information is available.
Senator King. Mr. Palmer, you talked about online
registration, and clearly, we are moving in that direction.
Talk to me about security of online registration and utilizing
the internet for these kinds of transactions. Are local
election officials comfortable that there is not a high risk of
fraud in this kind of situation?
Mr. Palmer. Mr. Chairman, I believe that local and state
officials are very much leaning toward online or electronic
registration because you are usually taking the registration
and the information from the voter and you are actually
comparing it to a database such as at the Department of Motor
Vehicles. So you have confirmation of the person's identity.
You have confirmation of the person's--you will have their
signature online, and you will have their photo.
So there is already a process where that individual has
been confirmed with another state agency, and so once there is
that match, it raises the level of confidence of election
officials on the integrity of that registration.
Senator King. Mr. Boehmer, would you like to comment on
moving in this direction?
Mr. Boehmer. Sir, from the Federal Voting Assistance
Program, as I mentioned in my oral testimony, we actually on
our web site will link to the states that have these online
voter registration systems.
So, from an assistance standpoint, you know, the use of the
internet and the tools will really help our voters. And, from
that point, we hand it off to the states and let the states do
the administration of elections.
Senator King. So, in the states that have those systems, a
young member of the military who had not registered at all when
they left the country could register in Virginia or in
Wisconsin from abroad and then go through the voting process;
is that correct?
Mr. Kennedy. Absolutely. Wisconsin has the same online
system, and it has worked very well in 2012 for us.
Senator King. And how many states have this kind of system?
Mr. Palmer. Mr. Chairman, I believe it is probably up to
18. It is just above 15 to 18, I would say--the number of
states that have some sort of online registration.
Senator King. And I presume that is growing each election
year, that states are adding this capacity.
Mr. Palmer. Yes, Mr. Chairman.
Senator King. Mr. Boehmer, what are the gaps that you see
the SENTRI Act filling that you are unable to do under the
current law?
Mr. Boehmer. Mr. Chairman, I believe that regardless of the
SENTRI Act we are always looking to improve our processes and
improve the assistance that we provide our military and
overseas citizen voters.
The SENTRI Act offers provisions that we think will be very
helpful for our voters. A couple of these, for example:
Increasing the validity period of the Federal Post Card
Application from one calendar year to one general election
cycle makes sense, particularly from a voter's expectation
standpoint. You know, a voter expects to be able to request to
register, excuse me, to register and then request an absentee
ballot only once in a general election cycle, and so increasing
the validity of the FPCA to one general election cycle should
align with our voters' expectation.
In addition, we mention the issue is not necessarily all
about registration. Sometimes it is about the fact that our
military population is particularly mobile. And, as I mentioned
again in my opening statement, we are working on initiatives
already that are mentioned in SENTRI on making sure that our
military members know the importance of every time they move to
notify their local election official. That provision is
actually in SENTRI.
And we are actually working on taking some of the
Department's internal systems, where military members naturally
go to update their address information for health care
benefits, for example, and then prompting them at that time, to
say, you just changed an address; it is important for you to
remember that you need to notify your local election official.
And they can then go to FVAP.gov and actually fill out a
new FPCA to change their address right there online.
Senator King. Senator Roberts.
Senator Roberts. The Election Assistance Commission's
Election Administration Voting Survey for 2012 found that of
33.1 million domestic absentee ballots transmitted, 83.5
percent were returned and submitted for counting.
For military and overseas voters, 876,000 were
transmitted--and that prompts one question, if you have 3
million people in the military why only 876,000 requested to
vote--but then only 66 percent were returned and submitted for
counting.
So, obviously, the lower rate of return for military and
overseas voters is cause for concern, but the question arises--
whose fault is this? Where is the problem?
Let's start with you, Mr. Boehmer.
Mr. Boehmer. Thank you for the question, sir.
I think what we really want to take a look at are
assistance activities and what we can do to help our military
members.
We say that the military is registered at a higher rate
that their civilian counterparts, and what we need to make sure
is the fact that the military members, who, again, are a very
mobile population--we need to recognize that. So making sure
that military members receive their absentee ballot is going to
be incredibly important.
Again, voting is an absolutely personal choice, and we want
to make sure, though, that for those who want to vote that they
really do have the tools and resources to do that.
Therefore, initiatives such as the Military Postal Service
Agency, you know, working hand in hand with the Department of
State and the United States Postal Service to modernize the
mail delivery system is something that is going to be really
important--so that a change of address, that the local election
officials will send out the absentee ballot. A change of
address will happen right there at the local post office
instead of having to wait all the way to an overseas location
for that to change.
So we know that the issue of time is something that is
against our military members, and this should go towards
helping solve that.
Senator Roberts. Mr. Kennedy, any comments?
Mr. Kennedy. Yes. I think increased use of technology will
help. The states like Wisconsin and Virginia that have
electronic ballot delivery have been able to ensure that our
end of the bargain has been fulfilled. Even in Wisconsin, where
out of about 10,000 ballots we had 4 that missed the deadline,
those ballots went out with electronic transmission and were
returned before the election and counted.
And I think the emphasis has to be looking at the
electronic return of the ballots and improving the return
rate--the focus of the Federal Voting Assistance Program on
increased communication with the members.
Senator Roberts. So it is electronic capability----
Mr. Kennedy. I think that would----
Senator Roberts [continuing]. That you are talking about
our technology.
Mr. Palmer, do you have anything to say about this.
Mr. Palmer. Yes, sir. It is time and distance. It is the
age problem that we have with the mail system getting to a
remote voter in a land far away, and there is really no margin
of error in the absentee balloting process. If there are any
errors, there is a potential of delay that may impact the
voter.
I think Kevin Kennedy talked about the ballot return. The
return of the ballot is the problem. It seems to be in most
cases. Thirty states allow the return of the ballot by some
sort of e-mail or fax to sort of mitigate that problem, and
that is not an issue with this legislation, but it shows that
the Postal Service has some issues with getting the ballots
back on time.
Senator Roberts. Let me just say that on page 4 of the
Act--and my reference here--Mr. Chairman, pardon my delay. I am
not sure I can even--oh, dear.
Well, under G and 1 and A and B and then the capital letter
I, Roman number II, iii, we finally get down to this should not
be paid by the voter but may be required by the state to be
paid by a local jurisdiction if the state determines election
officials in such jurisdiction are responsible for the failure
to transmit the ballot by any state required under this
paragraph.
In 105 counties in Kansas, that is not in the bill.
There is Harriet out there, who is the local county
election official. She has been doing a good job for many
years. She would like to retire, but everybody wants to keep
her on because they have had no ballot fraud. We do not know
what ballot fraud is in Kansas, thank goodness.
But I just wonder; is the county going to pay for this if,
in fact, you know, they do not get this ballot back?
What kind of costs are you incurring in the State of
Wisconsin with regard to county election officials?
This is a follow-on of the Chairman. This looks like to me
it could be a real problem with another unfunded mandate.
Mr. Kennedy. Well, it may be an unfunded mandate, but it is
a mandate that is created by the failure of the local election
official.
We do it at the municipal level. So, rather than my 72
counties, it is my 1,852 municipalities. As I indicated, we had
4 that missed the 45-day transit time----
Senator Roberts. Right.
Mr. Kennedy [continuing]. And we were all over them.
And, to me, the fact that we have a remedy built into the
system--I can point to this and say, you are going to pay the
cost for this, and this will be a lesson learned.
Our compliance has gone up tremendously with the more
oversight that we do.
Senator Roberts. Well, you only had 4, but 34 percent did
not return them, and that seems to me to be a big problem.
I am out of tine, Mr. Chairman. Thank you, sir.
Senator King. Senator Blunt.
Senator Blunt. Thank you.
Senator Roberts, I may be wrong on this, but I think a lot
of that 34 percent did not receive them in time.
One of the things that Senator Cornyn and I have worked
on--and others I am sure have, too--is to get the Post Office
to buy the equipment for military mail that they have for
everybody else, and they have just agreed in the last defense
discussion to do that.
If something was mailed to anybody in this room who is not
in the military, in almost all cases, if there is a forwarding
address that gets disrupted in the process of the first
delivery.
In the military, they do not have that equipment yet for
military mail. So it either goes to the location, as I think
Mr. Palmer suggested it might, where the person was when they
first requested the ballot, or it comes back to the APO address
and then goes again.
So just getting an investment in equipment here, which the
Defense Department has agreed to do--so, hopefully, by the next
cycle, that part of this problem will minimize the rest. But,
if you do not get the ballot before the election is over, you
obviously cannot mail it back.
And I agree totally with Mr. Kennedy that the penalty needs
to be on the election official that does not get the job done.
There is no reason for the Federal Government to make it easy
for that person not to do their job. And it is a minimal kind
of penalty, but it is one you do not want to explain to your
boss, if you are the local election official, why it is.
And what would the remedy be again, Mr. Kennedy? Is it you
have to send it under some sort of expedited mail?
Mr. Kennedy. You send it by express mail, and if it is
delayed, the local election official will pay the express mail
cost as well.
Senator Blunt. Right, right.
On the registration--the electronic registration--
apparently, Mr. Boehmer, you are concerned that there may be
some conflict here with state laws that require the application
for a registration to come in writing. Am I right on that?
Mr. Palmer. That is correct, sir.
Senator Blunt. And in the states that have electronic
registration, do any or all of them have that just for
military, or military and overseas, registrations?
In the states that have electronic registration, Mr.
Palmer, is it your view that anybody can do that, or are there
categories of people that have that electronic registration
available to them?
Mr. Palmer. If you are a registered voter in a state which
has a program like that, you could either update your
registration online or update your status with that program.
Senator Blunt. Online. And you think about 18 states are
doing that now?
Mr. Palmer. Eighteen states. And I believe that, obviously,
a lot of different states have different requirements on what
they want on the document, either the registration document or
the FPCA, which is the military absentee ballot request form.
But, if that information could be sent--prepopulated and
then sent to the jurisdiction, it would serve the same purpose
until the individual state makes the policy decision to go with
online registration.
Senator Blunt. And we could override the registration in
writing for Federal offices, I believe, but we could not
override it for state and local offices. And you want to be
sure that everybody can participate in every election they
should be eligible to participate in, no matter how they
register. Is that right, Mr. Boehmer?
Mr. Boehmer. Our assistance is for Federal elections.
Senator Blunt. Right.
Mr. Boehmer. So what we want to make sure of is that our
voters from the Department of Defense standpoint do not get
confused about the requirements of individual states. So, when
we can link off to states' own registration systems, it really
serves our voters well, and as you mentioned, states are
actually moving towards these online registration systems.
To Mr. Palmer's point, what we can definitely do at the
Federal level is prepopulate that form to make it easier on the
voter so that when they can send it to the state that
information would already be filled out.
Senator Blunt. And does anybody disagree with--Mr. Kennedy,
as I understand your view on the deadline, you just think a few
days there would make a big difference. From the deadline we
have in the legislation to what deadline would you suggest?
Mr. Kennedy. I would suggest that it be day 39.
Senator Blunt. Instead of 40?
Mr. Kennedy. Instead of 43.
Senator Blunt. Three.
Mr. Kennedy. In other words, it is one week after the
deadline that ballots should be out. What you will get is a
more complete report that says: Yes, we hit our target. If we
missed on four, this is how we solved the problem because the
SENTRI Act puts the remedy right in there.
Otherwise, what you are going to get is a report that says:
We have not got all of the data yet. Or, if we have the data,
here is what we have. And, if it is incomplete, this is what we
are doing.
And then you get another report under the Act.
This way, you get one report that is more complete.
And, if you do have an outlier clerk or local election
official, that will be focused. But most of these problems are
going to get solved in that time period.
Senator Blunt. Okay. I see the Chairman and the principal
sponsor of the bill is here, and my time is up.
Senator Roberts. Mr. Chairman, I would like to ask
unanimous consent, with the permission of the distinguished
Chairman, that the Senator from Missouri be granted another two
minutes and if he would yield for a question.
Senator Blunt. I will be glad to yield.
Senator Roberts. I am sorry. I did not see you leaving. I
would not have interrupted.
Senator Blunt. I am on the way to the floor.
Senator Roberts. Well, you have some unique experience with
the State of Missouri, obviously, with your past experience. I
am still troubled by the 3 million people in the military and
876,000 requested ballots, and then of that, only 66 percent
were returned. There is 34 percent missing right there.
And then on the top of it, something seems to be wrong.
I mean, you know what? Well, I guess you would like to have
a system where it was 100 percent.
But the thing that bothers me is that I think from your
expertise and from the panel's discussion and their expertise
that you have got a lot of problems with the Post Office and
the Defense Department.
I am not trying to point anything to you, sir.
And I just do not want, again, Harriet out there in some
county that does not have the technology yet, that that is
going to cost the state something and that the burden of cost
is on that county despite the fact that they have had a
spotless record to date. If, in fact, it is a Post Office
problem or a DoD problem, they ought to pay for it.
I do not like unfunded mandates, which I know everybody
here agrees that is not the case, but I worry about it.
Senator Blunt. Right. I think the challenge on the delivery
is not that the local election official does not get the ballot
in the mail on time. But you do have a very mobile population
that in the normal delivery system their mobility would be
taken care of in transit of the mail itself wherein the way
that DoD does it, they do it like they would have done it 20
years ago, where it has to go somewhere and then be forwarded
or maybe go back----
Senator Roberts. Right.
Senator Blunt [continuing]. To the original APO box.
And I do not know how much of that problem will be solved
by new equipment, but a significant amount of this problem is
an equipment problem, and the Department of Defense has agreed
to buy for the Post Office the equipment the Post Office needs
to treat military mail like they treat all other mail now, and
the way mail moves forward. So that will take care of a lot of
it.
But that is not a case where the local election official
got the ballot in the mail late. They do not get it not because
it got in the mail late but because it does not catch them
where they are until perhaps it is too late to cast the ballot.
Senator Roberts. I appreciate that insight, and I thank you
very much.
Senator King. No further questions?
[Pause.]
Senator King. Thank you very much, gentleman.
Chairman Schumer [presiding]. Well, thank you.
I want to thank our panel and thank Senator King for
stepping in and chairing the hearing. He is a great new member
of the Senate and of this Committee.
We are proud to have you on.
Senator King. Thank you.
Chairman Schumer. And now we will call our next panel, our
next witness, Senator Cornyn.
Okay. I want to thank my good friend, Senator Cornyn, for
speaking with us this morning about the SENTRI Act, for
sponsoring this important bill.
He and I have worked together as a team because we feel it
is so important that the men and women who are risking their
lives for our right to vote have that right themselves. We
share a deep commitment to protecting and strengthening voting
rights of military and overseas voters.
So, Senator, I have read your statement. I could not agree
more with it and with your statement on the Senate floor four
years ago, that if our soldiers can risk their lives for us, we
can at least allow them to vote.
And I thank you. You are so concerned about this, and your
diligence is helping us move this forward.
I will ask unanimous consent my statement be put in the
record and call on our witness, Senator Cornyn.
[The prepared statement of Chairman Schumer was submitted
for the record:]
STATEMENT OF THE HONORABLE JOHN CORNYN, A UNITED STATES SENATOR
FROM THE STATE OF TEXAS
Senator Cornyn. Well, thank you, Mr. Chairman.
And thank you, Ranking Member Senator Roberts, for your
important work on this subject, and I am glad to be before you
this morning.
Of course, Senator Roberts is the most senior Marine in the
United States Congress, and of course, there is no doubt about
his commitment and our collective commitment to making sure
that our men and women who are deployed overseas can exercise
the most basic right of a citizen, which is to cast their vote
effectively.
The 2012 election made clear that there are too many
barriers to military service members and their families voting,
and to having their votes actually counted, and we need to do
more.
In the weeks before the last election, November 2012, I
heard from many military service members from Texas, both
overseas and stateside, because they were having trouble
casting their ballots. They reached out for help because
election day was rapidly approaching and they still had not
gotten their absentee ballot.
I heard from the grandmother of one Texas Marine, who was
serving in Afghanistan, and the father of another because both
deployed Marines were missing their ballots.
I heard from the mother of an Airman from Texas that was in
the middle of moving from one Air Force base to another and did
not know where his ballot was going to be sent and whether it
would reach him in time.
These are just examples of the hurdles that our military
voters have in every election cycle.
Of course, we all understand--and Mr. Chairman, you just
acknowledge again--that these Americans make tremendous
sacrifices in the defense of our Nation and those sacrifices
should not include giving up their most basic rights as
citizens.
Without question, it remains much more difficult today for
military service members and their families to exercise their
right to vote than their civilian counterparts. Most problems
experienced by the military stem from their being gone from
their home voting jurisdiction on election day, which is a
direct result of their service. While it may never be as easy
to vote for service members who are away from home, we owe them
our best efforts to remove as many obstacles as possible.
To that end, this past November, I introduced--along with
the Chairman, Senator Schumer--the Safeguarding Elections for
our Nation's Troops Through Reforms and Improvements Act, the
so-called SENTRI Act. This represents the third effort, Mr.
Chairman, you and I and others have made together to improve
military voting, and I want to thank all of those members who
have joined us in this important bipartisan effort.
Congress has already removed some major hurdles that have
hampered military voting in the past, for example, in 2009, by
enacting a number of important reforms through the so-called
MOVE Act that was supported by Senators Schumer and Chambliss,
among others. And I was proud to support the MOVE Act and
author two parts of it.
The 2012 election was the first presidential election since
the MOVE Act, and post-election analysis shows that this law
has improved various aspects of the process, including reducing
the number of marked ballots that were rejected by local
election officials.
But this data also reveal a large number of military and
overseas voters who continue to experience problems. For
example, all of the blank absentee ballots that were sent out
to military and overseas voters--of all of them, only 30
percent--I should say 30 percent did not make it back.
Let me state that again just for clarity. For example, of
all the blank absentee ballots that were sent out to the
military and overseas voters in 2012, more than 30 percent
never made it back to local election officials to be counted.
This suggests that many of those ballots never reached the
intended voter likely due to outdated voter registrations or
ballot delivery problems.
So the MOVE Act made a difference, but clearly, there is
more that needs to be done.
The area perhaps most demanding of our attention is
military voter assistance. The significant drop in absentee
ballot requests in 2012 points to the need for the Department
of Defense to enhance its military voter assistance to put them
more on par with motor voter-style assistance programs that
benefit civilians stateside.
Blank absentee ballots have a significantly better chance
of reaching registered military voters at the correct mailing
address if those service members are able to keep their voter
registration current, which can be challenging because of the
transient nature of military service.
In the MOVE Act, we attempted to address this issue by
creating a voter assistance office on every military
installation, but the DoD was resistant, honestly, to that. And
I had conversations with the Chairman of the Joint Chiefs of
Staff, among others, about that.
So the SENTRI Act would require the DoD to offer military
voters an affirmative annual online opportunity to fill out a
voter registration and absentee ballot request form.
Helping military voters to keep their voter registration
current would also aid local governments, which I know is a big
concern of the Ranking Member--the burdens on them. So this
would help facilitate that.
So, in conclusion, the SENTRI Act is aimed at fixing the
system's most glaring deficiencies which continue to inhibit
our service members' ability to vote, and I hope the Committee
will vote this out favorably.
There is no one-size-fits-all solution to the various
problems that our military face when it comes to voting, but I
am hopeful that we can continue to make good progress.
And I am grateful to you, Mr. Chairman, and to Senator
Roberts, the Ranking Member, for your commitment to this noble
cause. And so I look forward to working with you to see its
final passage.
Finally, Mr. Chairman, I would ask unanimous consent that
various letters of support I have in favor of the SENTRI Act be
made part of the record, following my remarks.
[The prepared statement of Senator Cornyn was submitted for
the record:]
Chairman Schumer. Without objection.
[The information was submitted for the record:]
Chairman Schumer. And thank you, Senator Cornyn, not only
for your eloquent testimony on behalf of the men and women
serving us overseas but also your just steadfastness on this
bill and on the whole issue. We are not going to get things
done without your--it would not get done without your
leadership. So thank you for caring.
I do not have any questions.
I have submitted my statement in the record.
Senator Roberts.
Senator Roberts. Thank you, Mr. Chairman.
I would like to submit three questions--one to Mr. Boehmer
with regard to the law requiring voting assistance for military
voters and clear must be enforced, et cetera, et cetera, and we
did not have enough time to really get into that, and then one
with the MOVE Act and its requirements.
The Defense Department Inspector General attempted to
contact every one of the installations' voting assistance
offices but was unable to do so 50 percent of the time. So that
is a real problem. And he, the IG, simply recommended we change
the law to get rid of the requirement and make it
discretionary, which is pretty--it notes a significant
difference with regard to the testimony today. So that would go
to Mr. Boehmer.
And then one other question--I do not need to go into it
other than to make the statement that if the distinguished
Senator from Texas has any problem, any area in Texas, we can
send pretty fast horses with saddle bags from Dodge City
anytime he needs it.
Chairman Schumer. Or, from Brooklyn, New York.
[Laughter.]
Chairman Schumer. I would like to thank Senator Roberts and
assure him--first, without objection--those questions are
submitted for the record. We would ask the witnesses to respond
within a week in writing, if that is okay.
Okay, without objection.
And I want to thank Senator Cornyn.
I want to thank Senator Roberts and assure him we want to
work with him to try and deal with the problems he has so we
can move forward.
So, without objection, the hearing record will remain open
for five business days for additional statements and post-
hearing questions submitted in writing--okay, I gave a week. I
will modify that to five days--for our first panel of witnesses
to answer.
I want to thank my colleagues for participating,
particularly Senator King, who pinch-hit for me, and sharing
his thoughts.
And, since there is no further business, the Committee is
adjourned.
[Whereupon, at 10:54 a.m., the Committee was adjourned.]
APPENDIX MATERIAL SUBMITTED
----------
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
HEARING--BIPARTISAN SUPPORT.
FOR IMPROVING U.S. ELECTIONS: AN OVERVIEW FROM THE PRESIDENTIAL
COMMISSION ON ELECTION ADMINISTRATION
----------
WEDNESDAY, FEBRUARY 12, 2014
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
Room SR-301, Russell Senate Office Building, Hon. Charles E.
Schumer presiding.
Present: Senators Schumer, Klobuchar, King and Roberts.
Staff Present: Jean Bordewich, Staff Director; Stacy
Ettinger, Chief Counsel; Veronica Gillespie, Elections Counsel;
Benjamin Hovland, Senior Counsel; Ellen Zeng, Counsel; Abbie
Sorrendino, Legislative Assistant; Phillip Rumsey, Legislative
Correspondent; Lynden Armstrong, Chief Clerk; Lean Alwood,
Chief Auditor; Benjamin Grazda, Staff Assistant; Mary Suit
Jones, Republican Staff Director; Shaun Parkin, Republican
Deputy Staff Director; Paul Vinovich, Republican Chief Counsel;
Trish Kent, Republican Professional Staff; and Rachel
Creviston, Republican Professional Staff.
OPENING STATEMENT OF CHAIRMAN SCHUMER
Chairman Schumer. Okay, the Rules Committee will call to
order.
Our hearing today is on The Presidential Commission on
Election Administration, the report and recommendations on best
practices in election administration.
At the core of our national identity as Americans is a
pride that we live in a democracy and, of course, have the
right to vote.
It is a beautiful thing to me that on November nights in
New York, cold November nights, citizens, tired, coming home
from work--they want to get home and put dinner on the table
for the kids, just get home because they have had a hard day at
work, put their feet up on the table, and on the coffee table,
and watch their TV show.
But, in quiet dignity, they line up, go into the polling
place, do their duty, and the next morning we all abide by the
decision.
It is an amazing thing that does not happen in most
countries still to this day and has not happened in any country
for as long as it has happened in ours. So it is a beautiful
thing.
And, in the 225-year journey since the first presidential
election, many things about elections have changed. Of course,
more people are eligible to vote.
As I look around the room here, I do not know if either
King or Roberts is a property owner, but half of us would not
be allowed to vote when the Republic was founded.
And, if you guys--your ancestors did not own property----
Senator Roberts. I am a property owner.
Chairman Schumer. That is right. I should not have brought
that up.
Yes, you are.
Senator Roberts. Do you want to emphasize that?
Chairman Schumer. No, no, it was unintended. Okay.
Anyway, more people are eligible to vote--African-
Americans, 18 to 20 year-olds. Today's expanded electorate is
much more reflective of our Nation. But, as recent examples
have shown, there are still problems with our elections, many
of which could be addressed by improving the way we administer
them.
Election administration is a difficult, often a thankless,
task. So, before I go any further, I would like to thank the
election administrators and officials for all of the Election
Days that have gone right over the years. It is not an easy
job. Because it is so important to our democracy, we have to
aspire to perfection.
In reality, most Americans do not even think about running
of an election until something goes wrong. We all remember
Florida 2000 and Minnesota's 2008 Senate race, where recounts
put our election process under a microscope. As recently as the
2012 election, many polling places throughout the country had
unacceptably long lines, and this was not the first election
with that problem, but we would all like it to be the last.
In his election night victory speech, President Obama
referenced those long lines, declaring, ``We need to fix
that.''
That is a difficult task because elections in the United
States are uniquely run at the state and local level. With our
50 states, we have 50 unique election systems and thousands of
election districts, with this patchwork system sometimes
creating challenges.
Former Supreme Court Justice Louis Brandeis famously called
the states ``laboratories of democracy.'' They sometimes
provide us with examples of innovation that can be shared
throughout the country.
Soon after the last election, the President acted and
created a bipartisan commission to study election
administration and best practices for improving voting in
America. The President insisted this not be a partisan
exercise. The Commission was supposed to seek out the best
ideas for making voting easier and better no matter where they
came from, and that is just what the Commission did.
The Presidential Commission on Election Administration was
made up of 10 members, included current and former election
officials, executives from successful customer service-oriented
businesses and two chairs--both well known, one a Republican,
one a Democrat, but each with a long storied history in this
area.
And so, Mr. Bauer and Mr. Ginsberg, you have been on
opposing sides in political campaigns and in the courtroom. You
both have top-notch credentials as advocates and champions of
your respective parties. So you are uniquely qualified to
identify areas where we should move forward.
And I think on behalf of our whole Committee, those present
and those not, I would like to thank you for serving on the
Commission and finding places where we can move beyond
partisanship and focus on the nuts and bolts of making running
elections easier and better for voters and administrators
alike.
Your Commission's report, in my judgment, is an outstanding
piece of work, a valuable road map for improving election
administration in this country.
While the Commission's charge did not include
recommendations for Federal legislation, the report makes it
clear there are areas of existing law and its enforcement that
must be improved, and our Committee will study your report and
your testimony today carefully.
So I hope my colleagues on both sides of the aisle will
join me in using this report to help improve our election
system and strengthen our democracy.
So we thank you for your work and look forward to hearing
your testimony.
And, with that, let me turn it over to Senator Roberts.
OPENING STATEMENT OF SENATOR ROBERTS
Senator Roberts. Well, thank you, Mr. Chairman.
I look forward to hearing the presentation of our
witnesses.
I want to thank you for your service. They are to be
commended for giving their time on this project, and lending
their experience and their expertise, which is considerable.
I know there were a number of other well-qualified
commissioners who are not with us today, but I thank them as
well for their efforts.
The Commission was charged with making best practice
recommendations rather than legislative recommendations, and
that is what the report has done. It recognizes that elections
are carried out at the state and local level and that is where
we must focus our attention.
For our elections to function properly, we need all of the
parties--election officials, poll workers, and the voters
themselves--and the voters themselves--to do their part. This
requires proper planning and effective administration.
I hope the work that the Commission and the recommendations
that it has made will help advance the effective administration
of our elections and improve the voter experience.
I look forward to the testimony of our witnesses.
Thank you, Mr. Chairman.
Chairman Schumer. Thank you, Senator Roberts.
I welcome opening statements by the other members of the
panel.
Senator Klobuchar.
OPENING STATEMENT OF SENATOR KLOBUCHAR
Senator Klobuchar. Well, thank you very much, Senator
Schumer.
I just want to, again, as a member of the Judiciary
Committee and having looked at some of these voter issues from
that perspective, want to thank our witnesses today for their
good work.
And also, I would note while you did mention Minnesota with
the recount, okay, and the fact that, as we all remember,
someone did vote for someone named Lizard Person in that
particular election when we painfully looked at every single
ballot in the State, our State actually has a very proud
tradition of high voter turnout. We are always, consistently in
the top few states of voter turnout, and a lot of that has to
do that we have same-day registration.
And I studied and looked, and of the top six states for
voter turnout they are not necessarily Democratic or Republican
states. Iowa is usually one of the top ones. Maine is one of
the top states. But they tend to have something in common; most
of them have same-day registration.
So I know that is not necessarily part of what you looked
at in terms of legislation, but I think that it would go a long
way. And I have a bill with Senator Tester to look at rolling
that out on a national level.
Thank you very much, Mr. Chairman.
Chairman Schumer. Thank you.
I would say my experience is as broad as either of yours.
Minnesota has one of the best election systems and really tries
to do it fairly and in a nonpartisan way, as does Maine
actually.
Senator King.
Senator King. I do not really have a statement, Mr.
Chairman, except that since Minnesota and Maine have been
brought up, Jesse Ventura and I always thought it was states
with independent governors that had the high voter turnout.
[Laughter.]
Senator Klobuchar. But I will point out that Senator King
did not wear a feather boa at his inaugural party.
Senator King. Well, you do not know that, Senator.
[Laughter.]
Senator King. No, I have.
Chairman Schumer. This hearing is proving to be much more
interesting than anyone ever imagined.
Senator King. I will reserve my comments, and I look
forward to hearing from the witnesses. Thank you, Mr. Chairman.
Chairman Schumer. Okay. So we want to thank our witnesses--
first, Mr. Bob Bauer.
In addition to serving as a Co-Chair of the Presidential
Commission we are here to discuss, Mr. Bauer is a partner in
the law firm of Perkins Coie. He is general counsel to the
Democratic National Committee and, in the 2008 and 2012
election cycles, was general counsel to Obama for President.
So, as you can see, his credentials on the Democratic side are
strong.
Equally strong is Mr. Ben Ginsberg. In addition to serving
as Co-Chair of the Commission, Mr. Ginsberg is a partner in the
Patton Boggs Law Firm. In 2012 and 2008, he served as national
counsel to the Romney for President campaigns. And I will not
get into it, but he has had a profound effect in our electoral
system.
In 1992 and 1994, you changed America, not in a way I would
like, but it was amazing what you did.
And, with that, let me turn it over to Mr. Bauer.
We would ask each of our witnesses to limit their
statements to five minutes, and additional statements, without
objection--additional remarks, without objection, will be read
into the record.
Mr. Bauer.
STATEMENT OF ROBERT F. BAUER, CO-CHAIR AND MEMBER, THE
PRESIDENTIAL COMMISSION ON ELECTION ADMINISTRATION, WASHINGTON,
D.C.
Mr. Bauer. Thank you very much, Senator Schumer, Senator
Roberts, members of the Committee. Thank you for the
opportunity of testifying here today with my Co-Chair, Ben
Ginsberg.
We discussed in advance how we would organize this. So I am
going to open with, very quickly, some general considerations
identified in the report that we asked our readers to keep in
mind as we laid out then our recommendations and the best
practices we identified, and then I am going to illustrate a
little bit of the approach that we took by talking about the
signature issue--the issue most associated with the
Commission--and that is the problem of long lines at the polls.
There are, of course, a number of other issues that Ben
will cover that we address in six major recommendations along
with, as I said, highlighted best practices.
But let me say first that the Commission was structured,
and its membership was selected, on the theory that election
administration is a topic of public administration and needs to
be treated as such and that the voters ought to be considered
very much as we would consider any other recipients of services
provided. That is to say, elsewhere in their lives, Americans
think a good bit about customer service and about how customer
service is rendered to them in their roles as consumers and in
other walks of life.
And, likewise, our view was--and I think the President's
intention was--that the Commission consider the voters as
entitled to that level of customer service and provided the
kind of service in the voting process that we all believe, as
the drivers of our democracy, the voters deserve.
So this theme of public administration was essential to our
work.
One illustration of the importance to the Commission and
the approach the Commission took in this thought about public
administration and this emphasis on public administration is
our reliance on data. Our view was that we ought to look at
election administration as thoroughly as possible through the
lens of the best possible information, social science and
research that was available.
And we were very fortunate that some of the witnesses who
came before the Commission were able to fashion fresh data for
purposes of their testimony that the Commission could rely
upon, and that included an extraordinary survey of several
thousand state and local election administrators conducted by
some of the country's top political scientists and survey
research experts. And we gleaned very significant information
about some of the issues that we addressed from that survey.
But, overall, throughout the report, the effort was to look
very closely at the evidence--how the electoral system was
performing. And, in that connection, one of the recommendations
that we make is that we need, in this country, much more
systematic collection and analysis of data to enable us to
pinpoint both the strengths and the weaknesses in the
performance of our electoral process.
Beyond that, there were a few other--and I will tick
through them very quickly--considerations that we discuss at
the outset of our report.
Does one size fit all? We have many different
jurisdictions. Some believe that you cannot generalize reforms
across all jurisdictional lines. To some extent, that is true,
but it is also true that there is enough in the way of common
features to election administration across the United States
that one size in many respects can fit all for many of these
recommendations. And the recommendations we have made, we have
made on the basis that they truly fit all.
Issue of resources. Election administration costs money.
And, too often, we heard from administrators that budget
priorities are such, and the fiscal pressures on the states and
local jurisdictions are such, that too often the needs of
election administrators--the fiscal needs of election
administrators--are shuffled to the bottom of the deck.
We do not make specific recommendations. That was not our
charge. But, clearly, it was important for us to note that we
cannot have soundly conducted elections without money.
Thirdly, the technology challenge. I will leave this to my
colleague, Mr. Ginsberg, to discuss in greater detail, but it
is clear that one warning bell that we rang here was the
impending crisis in voting technology.
Enforcement of existing law. It is very important, even
though we do not make legislative recommendations, for us to
call attention to problems in compliance with existing Federal
statutes that were enacted to protect certain populations of
voters--language minority voters, disabled voters and the
voters among our uniformed military and overseas populations.
Some of these statutes, like the MOVE Act, have had
significant salutary effect, but there are still gaps in
compliance we identify in our report--compliance with the
Americans with Disabilities Act, compliance with the Voting
Rights Act and the provisions that protect language minorities
and performance of public assistance agencies under the
National Voter Registration Act in supporting the registration
process.
So those are some fundamental points that we make.
And then let me say very briefly the point about lines. I
just have a few seconds left.
There are many factors that feed into lines. We tried to
analyze what those factors might be. They raise a whole host of
issues that each can be individually addressed, and then in the
aggregate the problem of lines can be substantially resolved.
And we also--and this is something we call attention to--
are publicizing certain online tools now on our web site and to
be permanently hosted on the Cal Tech-MIT Voting Technology
Project web site, that administrators can use immediately and,
over time, improve upon that will enable them to efficiently
allocate resources within the polling place and plan for long
lines and address them.
This is a report, but it is also a project. And our work
begins now, to work with you, the Congress, state legislative
leaders, community leaders and election administrators around
the country, to see to their effective implementation.
Thank you, Mr. Chair.
[The prepared statement of Mr. Bauer was submitted for the
record:]
Chairman Schumer. Mr. Ginsberg.
STATEMENT OF BENJAMIN L. GINSBERG, CO-CHAIR AND MEMBER, THE
PRESIDENTIAL COMMISSION ON ELECTION ADMINISTRATION, WASHINGTON,
D.C.
Mr. Ginsberg. Thank you, Mr. Chairman, for having us here
today.
It has been a pleasure to work with Bob on this, and it is
fair to say we are both proud of the work of our Commission.
We were charged with making recommendations to the state
and local officials who actually put on our elections, to
remove barriers to duly qualified citizens being able to cast
their votes easily.
Elections and voting is an area where there can be conflict
between Republicans and Democrats, but it is also a subject
where Republicans and Democrats can agree on the basic
principle and on common-sense solutions to make the voting
experience better.
Bob and I were fortunate to work with eight other
commissioners and a talented research director from whom we
learned a tremendous amount.
We were able to reach bipartisan and unanimous agreement on
the report's recommendations and best practices. We found that
the basic principles on which Republicans and Democrats agree
is that every legally registered voter has the right to be able
to cast his or her ballot easily and without impediments.
As to the details of voting, Bob and I had some history to
fall back on. We have been on the opposite side of many
partisan battles over the years and, undoubtedly, will be again
as we amble along the path to the old election lawyers' home.
Among those battles have been a lot of recounts. All those
recounts were instructive to this exercise because they provide
an unparalleled view of how the system works.
We will both tell you that there are problems with our
system of voting. The Commission presented a unique opportunity
for us to address some of those topics that both Republicans
and Democrats know are problems and which we need to do
something about.
That is not a partisan issue. It is trying to get right
something that very much needs to be gotten right. In fact, it
is so important to get it right that it deserves doing even if
it does not satisfy everything that one party or another
believes needs to be fought in this area.
As for fixing these problems, the Commission recognized
that our elections are administered by approximately 8,000
different jurisdictions, largely using volunteers who do not
receive much training. As a result, achieving uniformity in our
elections has proven challenging.
Let me turn to a couple of the big-picture issues that
jurisdictions face.
As Bob mentioned, the state of our voting equipment and
technology is an impending crisis. The machines now being used
in virtually every jurisdiction, purchased 10 years ago with
HAVA funds after the Florida recount, will no longer be
functional within the next 10 years.
Voting equipment, generally, has not kept up with
technological advances in our daily lives. The current
equipment is expensive and unsatisfactory to virtually every
elections official with whom the Commission spoke. That is
heavily due to a Federal certification process that is broken
and must be reformed. This is a subject to which few are paying
attention and which will not end well on its current path.
One of the issues we heard about consistently was having
adequate physical facilities for polling places. In most
communities, those facilities are schools, but officials in an
increasing number of jurisdictions cite safety concerns as a
reason for not making schools available for voting.
Adequate facilities to vote and safety for our children
cannot be competing interests. The Commission felt a strong
need to call attention to the problem and to recommend that
security concerns be addressed by making Election Day an in-
service day for students and teachers.
Bob already talked about long lines. Let me touch quickly
on some of the other subjects of the Commission's specific
recommendations and best practices to the state and local
officials.
Early voting was one. Our Commission charge was to make it
easier for all eligible voters to vote. A majority of states,
with both Democratic and Republican state officials leading the
way, now have early voting and told us that early voting is
both here to stay and increasingly demanded by voters. The
details of the number of days and hours will vary by state and
county and locality, and the decisions are best made there.
More accurate voting lists. Whether to help ensure that
only dually qualified voters vote or to facilitate more people
being able to vote more easily, the Commission found agreement
and support across the political spectrum for more accurate
voter lists. We made two recommendations in that regard.
One is the adoption and use of more online registration.
The SupportTheVoter.gov web site has examples of tools that can
do that.
And, secondly, we recommend that all states join two
existing and complementary programs--the Interstate Voter Cross
Check, or Kansas, Project and the Election Registration and
Information Center. Both allow states to share data in ways
that will make their lists more accurate on their own
initiative.
Finally, the report also touches on a number of subjects
that are summarized in my testimony:
Military and overseas voting;
Disabled policies and law that require accessible polling
for the Nation's voters with disabilities, a group that is
growing larger with the Baby Boom generation, recommendations
that entail state and local voting officials meeting with
members of the disabled community and those with language
proficiency issues to be able to work out solutions for local
polling;
And, data and testing. There should be testing of our
machines after each election to see how well they performed and
to share information among jurisdictions. And there should be
more uniform collection of data because, as our political
scientist friends--led by our research director, Nate Persily,
of Stanford University--told us, more data leads to better
solutions.
With that, thank you again for having us, and I know Bob
and I would be happy to answer questions.
[The prepared statement of Mr. Ginsberg was submitted for
the record:]
Chairman Schumer. Well, thank you both for your great
report and excellent testimony.
I will start off.
The report recommends that states adopt online voting
registration, a reform that improves accuracy and saves money.
Nineteen states have done it. So that means 31 have not, if my
math is correct.
What is the barrier to the other states doing it, and is
there anything that we can do to overcome those barriers?
[Pause.]
Mr. Bauer. You will notice we continue the bipartisan
effort with each other----
Chairman Schumer. I see that.
Mr. Bauer. --to make sure that we do not interrupt. We will
start interrupting as soon as we return to our day jobs, yes.
We are not seeing a barrier so much. Sometimes it takes a
while for the discussions to take place within a state and,
ultimately, decisions to be reached in favor of changes like
online voter registration.
We are optimistic that this is one of the developments, a
key and, I think, well-tested introduction of a technology into
the electoral process that is going to sort of move
irresistibly across the country.
And one of our goals in keeping with the slogan--this is
not a report; it is a project--is to go out and, as we have
been invited to do, make the case wherever we can.
And wherever, Senator, that case can be made, whether it is
by Federal legislative leaders, state legislative leaders,
voting rights groups, community leaders or election
administrators, that case does need to be made. I think it will
wind up being an effective case.
Chairman Schumer. Is there an up-front cost?
Mr. Bauer. There is an up-front cost, but the----
Chairman Schumer. How much? Is it significant?
Mr. Bauer. No, it is not significant, and over time it is
clear from studies that have been done in states that have
adopted online registration that that cost is more than
recovered. It is a net savings--fiscal savings.
Chairman Schumer. Right. We have a lot of instances in our
government where an up-front cost is recouped over the next 10
years, but because of budget processes, which are not that
different in the states, people do not want to make the
expenditures in year 1 and year 2.
But that is not proving to be barrier. That is not a
barrier in your eyes as of yet.
Mr. Bauer. No, Senator, it is not.
Chairman Schumer. Right.
Second, the report states that electronic poll books have
the potential to solve Election Day issues, that election
officials want this technology. Can you discuss how electronic
poll books make a difference and what is the delaying the
adoption of that one?
Mr. Ginsberg. It is much easier to describe how they make a
difference than to describe why it has been a problem so far.
Chairman Schumer. Okay.
Mr. Ginsberg. They make a difference because the
information that can be put on an electronic poll book takes
care of a lot of sort of the antiquated paper that is in a
polling place. You can call up much more information, including
signature verification and photo IDs for people. It can cut
down on the traditional line problems that have plagued some
jurisdictions on Election Day. So they are a low-cost simple
solution to putting a lot of paper in one place where poll
workers can access it easily.
Chairman Schumer. What is delaying their implementation?
Mr. Ginsberg. Well, this goes into the whole sort of morass
we have fallen into with technology. Part of the problem is
that the certification program for new ballot systems is kind
of fatally broken, and new systems are having a great deal of
difficulty coming online because the certification process now
takes so long and is virtually impossible to get through. Some
of these solutions are just proving very nettlesome for
manufacturers to find a market to put them in place.
Chairman Schumer. Got it. Okay.
Next, Delaware is highlighted in your report as a national
leader in implementing the National Voter Registration Act.
Delaware seems to seamlessly transfer information from the
DMV--motor vehicles--to the election rolls. Can you tell us a
little bit more about this and explain why it is better than
what most other states do and, again, why aren't more states
doing it?
Mr. Bauer. We, Senator, laud Delaware in particular because
of our concern about the inconsistent performance of
Departments of Motor Vehicles across the country in
implementing their responsibility under the National Voter
Registration, or Motor Voter, Act. This is a significant issue.
One of our commissioners, Chris Thomas, is intimately
familiar with this issue, twice Director of the National
Association of Election Directors, and has really called
attention to this as a major, major shortfall in compliance
with Federal law.
And we are calling attention to the fact that (A) there is
no reason why this DMV performance cannot be improved and (B)
there are models like Delaware to which states can look that
really illustrate how effectively this can be done and what a
difference it makes in election administration.
There really needs to be major consistent attention to the
fact that this is a serious, serious problem in the operation
of current Federal statutes. That is to say compliance with
those statutes.
Chairman Schumer. Thank you.
My time is expired.
Senator Roberts.
Senator Roberts. Well, thank you, Mr. Chair.
I want to talk about the long line problem, and we often
hear about long lines are the result of some kind of a real
plan of some sort that certain areas are being targeted and the
lines are a result of a deliberate effort to disenfranchise
groups.
My question is, did you find any evidence of that?
Second, are these lines resulting from management problems
or deliberate schemes to disenfranchise people?
Mr. Ginsberg. Well, I will let Bob address this as well.
What we saw is that almost exclusively----
Chairman Schumer. Please turn the microphone towards you.
Yes. Thank you.
Mr. Ginsberg [continuing]. That this was a management
issue, that there are any number of solutions that we put
forward in the report to deal with the specific problems of
long lines.
We held extensive hearings with the jurisdictions, in the
jurisdictions, where long lines had occurred, and we found that
there are--the problems are all identifiable, and they are all
solvable, and there were no plots or conspiracies that caused
the lines.
In fact, if you--we spent some time in the jurisdictions in
south Florida and held a hearing in Miami, and what we found
was that in the polling places where there were long lines in
those counties that occurred in less than 1 percent of the
polling places in that particular county. That would suggest a
resource allocation issue and a way to look at management
techniques and facilities to be able to improve that.
And one of the things that Bob mentioned in his testimony
was the providing of online tools for precinct officials to be
able to gauge the flow over the course of the day and better
allocate the equipment that they have within a county----
[Audio system malfunction.]
Senator Roberts. . . . casting ballots a month before the
actual Election Day, don't we want voters to be casting their
ballots based on the same set of facts?
Is there a value in the communal act of voting [inaudible]?
Are we wise to sacrifice that in the name of convenience?
Does early voting increase turnout, or does it just spread
it around?
Is it bringing in people who otherwise would not vote, or
is it just making it more convenient for those who would be
voting anyway?
The thing that I am trying to point out here is you are
voting 45 days before the Election Day and then within the 45
days several big issues come up with regard to the campaign and
the voters who have voted 45 days early have no chance to
factor that in, in regard to the Election Day period.
Now I have asked you about four or five questions. I will
stop there.
You know, I have not heard from Bob. Why don't you go
ahead?
Mr. Bauer. Certainly, Senator. Thank you.
Senator, the----
Senator Roberts. You will have to speak up. I am sorry.
Mr. Bauer [continuing]. There are two points that I would
make about the early voting and the issue that you raise about
whether or not it cuts off the opportunity for citizen
deliberation prior to the casting of ballots.
The first is that without speaking now to the amount of
early voting that a state might be prepared to provide, the
expense of the early voting provided, voters actively resist
the notion that they all need to be funneled through on one
day, on Tuesday, from 7:00 a.m. until 8:00 p.m. or 9:00 p.m. at
night. The traditional Election Day model has not only broken
down from the standpoint of administrators--it is less feasible
from their perspective--but it simply runs up against the grain
of voter expectation that they should be cramped in, if you
will, to this one day to vote.
I think it creates a whole host of problems and does
contribute, for example, to issues like lines.
The second point I would make, Senator, is that the studies
show that the voters who vote early are the voters who are the
most settled on their choice. They are voters who have made up
their minds, whether you call them the most partisan or the
most ideologically committed, but one way or the other, those
are the voters least likely to be moved by any sort of
anticipated changes in the campaign agenda over the remaining
days of the season.
So, on balance, when you weigh what voters expect and what
they believe they ought to be offered in the way of options for
voting against the risks that they will be denied an
opportunity for information they really need for deliberation,
our Commission concluded that early voting in some form or
another wins out.
Mr. Ginsberg. I believe this is an area where the
individual states really have the best feel for how much early
voting their voters want. And we did hear across the political
spectrum from officials of both parties, who say that voters in
many jurisdictions really appreciate and expect to be able to
have some options at the time that they cast their vote.
In terms of resources, it can be more efficient for
jurisdictions to have early voting and not have to jam
everything onto Election Day. That is not always true.
But I think this is one of those areas where we aim the
report at state and local officials, and they are the ones who
end up deciding.
Senator Roberts. Thank you.
There is an article by Norm Ornstein, and it is back in
2004, but I feel I still think it is very relevant. The
headline said ``Early Voting Necessary But Toxic in Large
Doses.''
The article forcefully details the dangers inherent in
early voting, and the points he makes, I think, are at least
worth considering. I commend it to the attention of all of our
colleagues.
I have some other questions, but my time is expired. Maybe
we can get back on another round, or I could submit them for
the record.
Chairman Schumer. Well, thank you, Senator Roberts.
I have a prior commitment. Senator King has graciously
agreed to continue to chair the hearing. No problem with the
second round if it is okay with the Chairman.
Senator Klobuchar is next.
And we do have an executive session to nominate two people
to the Election Assistance Commission--Thomas Hicks and Myrna
Perez. We will do that off the floor at about noon, when we
have a series of votes.
So, with that, let me call on Senator Klobuchar and thank
Senator King for once again generously agreeing to chair.
Senator Klobuchar. Thank you very much.
I first want to start by thanking you for that kind of
consumer model you have developed here--that people should not
be waiting in line. And you can look at it in that simple
fashion.
But I did want to follow up on something that Senator
Roberts was asking about, of you, Mr. Ginsberg, and that was
when you looked at these and studied these things, were people
trying to disenfranchise people or was it management issues,
and you said it was management issues.
And I could see that in our State sometimes when we have
problems at polling booths. Mistakes are made.
But I do think that some of the efforts that are going on
right now in some of the states--you have come out for early
voting. Yet, North Carolina and Florida recently started
efforts or enacted laws that would cut back on early voting, or
North Carolina stopped same-day registration, or some of these
other things that you see states doing.
What I am concerned about is the effect of this is to
disenfranchise voters, whether it is done at the individual
precinct level or not. This is about laws that are being
enacted with stringent license requirements and things like
that.
So my question is, one, do you think that some of that is
going on.
And, number two, just to get the stuff done that you want
to get done, is there the political will to do it in these
states and in Congress, when we see the kinds of things that
are going on in so many of the states and, in fact,
backtracking from this idea that we should allow more people to
vote?
I guess I start with you, Mr. Bauer.
Mr. Bauer. Senator, two quick responses to your comment.
The first is we were surprised--maybe not surprised. I do
not want to overstate the case. But we certainly were struck, I
will put it this way, by the wealth of testimony around the
country--Democratic and Republican, in jurisdictions that might
be thought, you know, much redder than bluer or, in some cases,
much bluer than redder--at the uniform wish once the lights
were off and the doors were closed, or in hearings where the
agenda was well-defined, a wish to see election administration
in fact be first-rate public administration for the benefit of
the voters.
I mean, across the board, that is what we heard.
And we had, after all, an opportunity at all of our
hearings for anybody who wanted to be heard to be heard, and so
we might have had an opportunity then for discordant voices
then and very partisan voices. But, by and large, the hearings
and the other discussions we had seemed to have welcomed as an
opportunity for people to voice their wish that we had an
election system that we could be proud of.
Now, granted, outside of many of the issues we discuss,
there are controversial enactments that the parties are quite
divided about.
And I assure you that if Ben and I went off into a room in
our non-Co-Chair capacity we would wind up brawling about just
those issues again. Right now, we are in statesmanship mode.
Mr. Ginsberg. It is sort of painful.
Mr. Bauer. It is painful, but we are holding out as long as
we possibly can.
But that is not the whole story.
The second point I would make--and this is a critical
point--is that if we strengthen some of the key administrative
sort of features of our electoral infrastructure, if, for
example, we have an understanding that we are going to strive
toward the 30-minute wait time maximum that we articulate in
the report, and address some of the issues that lead to long
lines, then we are going to risk the vulnerability of the
system to partisan mischief.
Senator Roberts raised the question, could you have plots
to sort of create long lines?
Well, there is more vulnerability in the system to those
sorts of shenanigans if the system itself is weak, and it will
break down under pressure.
If it is strong, it is less likely that it will break down
under political pressure or by political design.
So those would be two of the responses I would offer you.
Senator Klobuchar. Okay. Thank you.
Mr. Ginsberg.
Mr. Ginsberg. I think this area is fraught with partisan
feelings. I think that is unfortunate.
I think you cannot equate cutting back hours in early
voting with trying to disenfranchise people.
The simple fact of the matter is in North Carolina and
Florida, as an example, no one has suggested ending early
voting. What people have suggested is that there are
administrative concerns about having unlimited early voting.
That is a fair debate to have. It does not entail voter
disenfranchisement. And we get into sort of nasty rhetorical
detours on this issue all too often.
I would also point out that in all the studies that we saw
early voting does not increase turnout. That is an unproven
assertion--that having more hours actually does increase
turnout.
Senator Klobuchar. But does same-day registration--a
different matter, of course. Do you think that increases it?
Mr. Ginsberg. Well, it is a different matter. It is a
little bit hard to say because the states that you mentioned as
having early voting do have a history of increased
participation.
So I think the laboratory of the states to see if same-day
registration works or not has not yet been taken on.
And I think in some of the states where there is low
turnout same-day registration would create all sorts of
problems for the administrators that might in fact devolve into
problems like longer lines if you had same-day registration.
So I think it is an unproven, untested area so far.
Senator Klobuchar. For eight years, I enforced our election
laws and looked back through every single painstaking--every
single account of double voting. Ninety percent of them were a
father and son with the same name. And we just saw so little
fraud in a major county with over two million people.
And every so often there would be someone who was mad and
voted twice or a felon who did not know that they were on
probation and that they could not vote. We had things like that
happen. It was true.
But, for the most part, people were not going to go out
there and try to commit a felony and vote.
So that is just my general concern, and why I am so glad
about what you are doing is that I just do not see that as the
major problem as much as it is that it has become hard for
people to vote. Or, for some reason they do not want to go
stand in these lines because they hear about the lines, and
then they do not want to go out and vote. And that is why I
appreciate what you are doing.
And I would just have one more question along the lines of
your recommendations. That was on the schools. I wanted to know
more about what they identified as these security issues. Have
there been incidences at schools?
We still have a lot of voting at schools in Minnesota,
obviously, and it is the central place where people feel
comfortable to go.
And how do you think we fix it?
Mr. Ginsberg. I think this area was one of the greatest
areas of surprise to us when we heard from so many local
officials that it was a problem.
The concern is that since the incidents at schools with
shootings and violence, that having strangers walking around in
the schools and on the campuses was a source of concern, and
that is the reason that some states, some localities, are
cutting back the use of schools.
It is a tremendous problem because in the majority of
jurisdictions schools provide the best facilities for voting.
There is ample space. They are accessible--all the things that
you want in a polling place.
So the conflict between the interest of safety to children
and voters is a conflict that should not be allowed to exist.
Senator Klobuchar. And you had suggested like having
volunteers there or something?
Mr. Ginsberg. Well, to have a school holiday basically, on
Election Day so that it would be a training day for teachers.
Mr. Bauer. So that would mean, in effect, you are not
changing the school calendar; you are not costing them a day,
because they would take the in-service training they always
schedule anyway and move it to Election Day.
Senator Klobuchar. And have it scheduled on Election Day,
with their time to vote as well put in there--that makes sense.
Thank you.
Senator King [presiding]. Gentlemen, thank you.
I am sure my kids would vote for an extra day off.
Mr. Ginsberg. Not an extra day.
Senator Klobuchar. No, they are just changing the in-
service day.
Senator King. I know. I know. I know.
Senator Klobuchar. All right. All right.
Senator King. Senator Schumer mentioned laboratories of
democracy, and I have often thought that in fact the states are
laboratories of democracy. The problem is no one reads the lab
reports and we do not do a very good job of sharing the
information.
So I commend you because I think what you have done here is
exactly that function of collecting data and information across
the states and sharing best practices. This is principally a
state and local issue.
I will--in echoing Senator Roberts, we had a situation in a
Maine election recently where we had very early voting. I
cannot remember how. It was a month or more before the
election. The dynamics of the election changed in the last
several weeks, and we actually had people going into their town
offices, trying to retrieve their early vote to change it
because of developments in the election.
So I do think that there is a legitimate issue about how
far in advance because elections do tend to sometimes come into
focus in the last several weeks.
And we actually had that experience. I knew people that
went to their town office and said, how can I get my vote back?
I want to change it.
And they could not.
It was a very distinct situation.
The long lines issue--how widespread is it? Is it a
national problem, or is extremely localized?
You mentioned in one district it was 1 percent of the
precincts or something like that.
I mean, are we searching for a Federal solution to what is
really a very isolated local problem that needs to be dealt
with by local officials?
Mr. Bauer, do you want to tackle that?
Mr. Bauer. Certainly. We are not recommending a Federal
solution. We are definitely recommending, however, a series of
reforms and best practices by which state and local governments
can keep the wait lines down and, hopefully, comply with the
30-minute standard that we have articulated.
But we did point out that--and this, by the way, is not
intended as an adverse reflection in any way on the Election
Assistance Commission, which has other duties which it has
performed extremely well. Our report is replete with references
to the top-flight work that they have done developing best
practices and disseminating them to the jurisdictions.
But here, knowing that there is going to be continued
conflict about its role, there is a structural blockage here
that simply needs to be addressed. And we cannot wait for some
day we might hope for, when partisan fevers will subside and
the Election Assistance Commission will somehow sort of
experience a new dawn in this particular area.
The problem that Ben has identified is just simply too
urgent, and therefore, some answer has to be found.
Senator King. Senator Roberts, second round.
Senator Roberts. Mr. Acting Chairman, it occurs to me,
coming back at this point, that as usual you have focused on
the very questions that I was going to ask. And our witnesses,
with their expert knowledge, have already answered them.
So the question is, do I simply repeat the questions that
you have asked and have them do it over again or simply ask
permission to put this article by Norman Ornstein--it is clear
back in 2004, ``Early Voting Necessary But Toxic in Large
Doses.'' I am not going to read it to you, but I would commend
it to the attention of everybody. I think it still is very
viable today.
Senator Roberts. And I want to thank the witnesses and
everybody concerned with this.
And, since my questions are a duplication of the questions
already asked, I yield back and I thank you, sir.
Senator King. Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman.
I have a few more questions about some actual individual
recommendations you had. The first I thought was interesting
was the internet feed idea.
I come from a state where we literally put a camera on
rising waters on a river, and everyone in the community tunes
in to see what is exactly happening so they can see it.
Or, we use this all the time, obviously, for weather.
People are constantly checking today, right, when the storm is
coming in tonight.
And the simple idea that people could, with simple
technology, check to see what is happening with voting lines in
their precincts--could you talk a little bit, how you would
envision that working? Would you be tuning a camera on the
people, or would you just be giving reports?
Mr. Bauer. I think what we would envision is that the
administrators would be continuously assessing wait times and
then posting accessible reports that citizens could consult as
they sort of plan out when it would be most convenient for
them, most efficient for them to vote.
And, as you point out, Senator, quite correctly, this is
fairly straightforward. It is one of the ways in which we
believe we have to be continuously thinking about the
introduction of technology to support the voting process.
Senator Klobuchar. So you are just thinking election
administrators in each precinct saying that there are no wait
times or something like that?
Mr. Bauer. Twenty minutes, half an hour, forty-five
minutes, correct.
Senator Klobuchar. Okay. Then you had another one on poll
working training. You spent a lot of time discussing the
importance of that and professional workers operating in the
polling places and training standards for poll workers. How
would this work?
Mr. Ginsberg. Again, it is something that really can be
talked about by the state but implemented by either the state
or local jurisdictions.
And poll workers are the point of contact for most voters.
So having well-trained poll workers is extremely important to
the smooth functioning of the system and just the way voters
feel about voting. It comes down to training and whether that
is a top priority or not with local administrators--to be able
to recruit poll workers.
One of the laments we heard from elections officials was
how difficult it is to recruit poll workers, to find enough to
be in the polling places.
So we have some suggestions about using college students
and even high school students. Apparently, high school students
are more reliable in showing up than college students. Go
figure.
And, to encourage businesses to allow their employees to be
able to help out as poll workers on Election Day and then to
have sufficient training.
Senator Klobuchar. Your report also talked about the
importance of access to information in languages other than
English, including ballots in other languages, outreach to non-
English media outlets, bilingual poll workers.
I know we have made some efforts in Minnesota with voters,
with Asian and Pacific Islander groups.
Why are efforts to make voting accessible to these
different groups so important?
Mr. Bauer. We want to stress, and have stressed throughout
the entire report, that the broader theme that the Commission
struck--and I think it is well within its charge--was improving
the voter experience.
For language minority voters to go to the polls and to find
that there is nobody there to help them, who can speak their
language successfully, is simply just not consistent with
offering the kind of experience that all of our voters deserve.
And, as we pointed out, there is support that by Federal
law this Congress has tendered to these voters, and the
statutes that provide for this protection are not drawing
universally consistent compliance.
And so, in a variety of ways, both in the localities
recruiting--systematically recruiting--poll workers with
language capability and then on the more--sort of on the next
scale, next point up the scale, devoting their efforts in
compliance with the Voting Rights Act provisions, protecting
language minorities, there is a significant amount more to be
done. And it is absolutely critical to reflecting respect for
the voter.
Senator Klobuchar. One of the things you also talk about in
here is the people serving overseas in our military and how
having online registration materials would be so helpful to
them. I think that it makes a lot of sense. But, do you want to
explain that?
Mr. Ginsberg. We found inconsistencies among the states in
the sort of usefulness of their web sites for people serving in
the military, especially people serving in the military
overseas or living overseas. And so there are some states that
seem to have more robust sites than others.
Web sites are kind of the easiest way to communicate if you
are overseas or in the military, much more so than a postal
service or even a direct delivery system. And so we would
encourage at least the provision of registration materials on
state web sites to be enhanced in the states.
Senator Klobuchar. Okay. Thank you very much.
Senator King. I want to follow up again on the question of
certification because you both identified there is a kind of
coming-at-us wave of replacement of machines with new
technology, and yet, if the certification system is broken,
that could be a real problem in 4 to 6 to 10 years.
Is the problem the structure and the lack of functionality
of the EAC, or is it the idea of Federal certification itself?
I see those as two separate issues.
In other words, if the EAC tomorrow became fully
functional, would this open the process and we would take care
of this in an expeditious manner, or should we seriously
consider saying, hey, this is a state and local responsibility;
why do we need Federal certification?
Mr. Ginsberg, your thoughts?
Mr. Ginsberg. It is an area where a Federal certification
process makes sense in which the states, in some ways, desire
it. There certainly needs to be a central body to be able to
judge machines and to give the states some comfort in the
quality of machines.
Senator King. Like UL, Underwriters Laboratories for
appliances.
Mr. Ginsberg. Well, perhaps something like that. Again, the
state election directors forming a group was the model before
the EAC.
I would agree that the EAC and its functionality is a
completely separate question wrapped up in a lot of other
different things.
Senator King. But it is a question that is important
because if it does not get fixed then we do not get the
certification, right?
Mr. Ginsberg. Correct. So it should be fixed.
Personally, I am partial to the state election directors
solution for it. I think that could happen much more
expeditiously, with kind of a greater need. There would be a
Federal role in terms of the expertise that would need to be
brought to it, but that is not necessarily through the current
certification process.
Senator King. Mr. Bauer, your thoughts on my question?
Mr. Bauer. Yes, I think you posed the question exactly
correctly.
I mean, I think that there are--it is possible to confuse
the issues.
I do believe that we would not have arrived at this
conclusion, I do not think, and made this recommendation if the
EAC in this particular area had not been in somewhat of a state
of paralysis.
And so, if your question is had this never developed and
the EAC was sort of fully functioning, could it discharge this
role successfully, the answer in my judgment is yes.
We had to take into account the reality that that may not
be prove to be the case. And we cannot wait for a solution that
may not be available to us in the political or public policy
sphere, or in the political sphere, and so other alternatives
have to be developed on a fairly urgent basis.
Senator King. Would it take legislation for those
alternatives because right now isn't the certification--I mean
it is just behind the dam, right?
I mean, it cannot happen.
What do we do?
This is a problem that is going to come at us in the next
two to four years.
Mr. Bauer. I think that that is where--my Co-Chair will
correct me if I am wrong. I think that that is part of the
discussion that I think needs to take place right now, which
is, what steps should be taken and how could they be taken to
fully develop out those alternatives?
We indicated only in broad brush strokes what those
alternatives might be, but we did not grapple with the details
in this report.
Senator King. Mr. Ginsberg suggested he thought an
alternative where the state directors created a certifying
agency would be an acceptable alternative. Would that be
acceptable to you, or do you think this has to be a Federal
responsibility?
Mr. Bauer. I would certainly be prepared to consider all of
the alternatives.
I would not want any position that we take to be--again,
one of the concerns we have always had is that it would be
taken to be sort of a damning sort of conclusion about the EAC
and its future. That is not our intention, certainly not my
intention.
But I think any alternative that promises to be the most
effective and efficient alternative is one I certainly would
consider.
Senator King. No, my question is even assuming the EAC is
perfectly functional, does this need to be a Federal
responsibility, I guess is the question I am asking.
Mr. Bauer. I do not know that I would define it as a
Federal responsibility by necessity, but I am also not prepared
to say that there is an alternative that--I am not prepared at
this point because I am not sure I have studied it closely
enough or reached a conclusion in my own mind, which of the
alternatives, the one Ben suggested or potentially another with
more Federal involvement, might be the most effective.
All, in my mind, that we need to do is sort of focus on
what would be most effective, and on that I do not have a
conclusion.
Senator King. Well, we have to do something.
I mean, the alarm bells are ringing.
Mr. Bauer. Yes.
Mr. Ginsberg. If I might, Senator, the way the system works
is that different states have different standards. Almost
inevitably, they say the machines that are used in their state
need to have been certified by, right now, the existing
structure.
It is not that there is Federal legislation or a Federal
role that particular blesses a particular machine when it gets
done.
I mean, there is still state legislation that refers back
to a central testing facility for the machines to be sure that
they are worthy of use. That can or cannot be a Federal
function--that group that is judging the quality of the
machines.
Senator King. Thank you.
Mr. Bauer. Or, if I may, Senator, it could be a function
that is not federally directed but federally supported.
Senator King. Right. Well, thank you both for your thoughts
on this.
And, if you have additional thoughts on this important
issue, please file them with the Committee. I would appreciate
having them.
Any other questions, Senator Klobuchar?
Senator Klobuchar. No.
Senator Klobuchar. On behalf of the Committee, I would like
to thank both of you, Mr. Bauer and Mr. Ginsberg, for your
important testimony and particularly for your work on this
Commission. It is important. It is important to the people of
America. It is important to our processes. It is important to
who we are as a country.
And I really appreciate the work that you have done on
this, and thank you very much.
This concludes the panel for today's hearing. On behalf of
the Rules Committee, I would like to thank all of our
witnesses.
Without objection, the hearing record will remain open for
five business days for additional statements and post-hearing
questions submitted in writing for our witnesses to answer.
I want to thank my colleagues for participating in this
hearing and sharing their thoughts and comments on this
important topic.
This hearing is now adjourned.
[Whereupon, at 11:12 a.m., the Committee was adjourned.]
APPENDIX MATERIAL SUBMITTED
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[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
HEARING--ELECTION ADMINISTRATION:.
INNOVATION, ADMINISTRATIVE IMPROVEMENTS AND COST SAVINGS
----------
WEDNESDAY, MARCH 12, 2014
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The Committee met, pursuant to notice, at 9:51 a.m., in
Room 301, Russell Senate Office Building, Hon. Charles E.
Schumer, chairman of the Committee, presiding.
Present: Senators Schumer, Warner and Roberts
Staff Present: Jean Bordewich, Staff Director; Stacy
Ettinger, Chief Counsel; Veronica Gillespie, Elections Counsel;
Ben Hovland, Senior Counsel; Abbie Sorrendino, Legislative
Assistant; Phillip Rumsey, Legislative Correspondent; Jeff
Johnson, Clerk; Benjamin Grazda, Staff Assistant; Mary Suit
Jones, Republican Staff Director; Shaun Parkin, Republican
Deputy Staff Director; Paul Vinovich, Republican Chief Counsel;
and Rachel Creviston, Republican Professional Staff.
OPENING STATEMENT OF CHAIRMAN SCHUMER
Chairman Schumer. The Rules Committee will come to order.
Good morning. You cannot say good morning before you say that
the Rules Committee will come to order, I have learned.
Anyway, this hearing is the Committee's second in a planned
series on improving the administration of elections. Today's
hearing focuses on innovation, administrative improvements and
cost savings. Last month, the Committee met to hear from the
bipartisan co-chairs of the President's Commission on Election
Administration. The president established the Commission to
study how elections are administered across the country and
identify best practices for improving our elections. And as we
heard from two very bright and very thoughtful co-chairs, Bob
Bauer and Ben Ginsberg, there are a number of improvements that
can be made as to how elections are administered, and they had
some bipartisan suggestions.
As Americans, we are and should be proud of our Democratic
traditions. Expansion of the voting franchise over the past two
centuries reflects the best of America. And part of being
American is recognizing the importance of giving a voice to all
Americans to participate in our democracy, and that is why we
plan to introduce legislation that builds on the best practices
recommended by the Presidential Commission on Election
Administration.
American voters deserve an election system that allows
every eligible American who wants to participate in our
democracy the opportunity to do so without unnecessary burdens.
Common sense reforms that utilize our existing technology can
make our election administration more voter-friendly while
increasing efficiency and reducing costs.
Many of our colleagues have been very interested in this
issue, and at the top of the list are the two senators
testifying first on our panel--they are Senator Boxer and
Senator Coons. They are committed to improving the
administration of elections and to talk about their
legislation, very thoughtful, good legislation that each of
them has offered.
Senator Boxer is here to discuss the Lines Interfere with
National Elections Act, known quite coincidentally as the LINE
Act, which seeks to create accountability and ensure voters
never have to wait more than 30 minutes to vote. This goal,
also highlighted by the Presidential Commission, is an
important one for which we should strive. I think it is a great
idea. Nothing pains me more than to see people on a cold
November night waiting to go home, put food on the table,
relax, waiting in the cold, in line, that goes--and we have it
in my home neighborhood and my home borough. So I think Senator
Boxer's legislation is needed and thoughtful.
Senator Coons was gracious enough to join us today to
discuss the Fair, Accurate, Secure and Timely Voting Act, known
as the FAST Voting Act, coincidentally as well. The bill
creates an incentive for race-to-the-top structure to encourage
states to adopt many of the best of the best practices, and I
think that is a great idea too, to have the states compete to
do better and give them a reward for doing better, work very
well and race to the top. And I think it will work very well in
elections too where you have the same idea. Federal interest
but basically state laws govern.
At the Presidential Commission, we heard an overview of the
reforms, and today we are going to hear a more in-depth
explanation of the benefits of online registration and
electronic poll books from our second panel of witnesses, which
includes state and local elected officials. I look forward to
their first-hand accounts of how technological upgrades can
help in providing good customer service to voters, and we
should regard the voters as customers, as well as cost savings,
by eliminating unnecessary data entry. These are the types of
common sense, cost-effective reforms we hope to move forward in
this Committee.
So at the end of the day, I am going to ask that the rest
of my statement be read into the record. It talks about the
kinds of things that the Committee is going to pursue.
[The prepared statement of Chairman Schumer was submitted
for the record:]
Chairman Schumer. But I want to get right to our witnesses,
who have been patient and on time. So I will ask Senator
Roberts if he wishes to make any opening remarks, ask Senator
Warner if he does, and then we will go right to the testimony.
OPENING STATEMENT OF SENATOR ROBERTS
Senator Roberts. Well, thank you, Mr. Chairman. Sorry I am
late, and special greetings to Senator Boxer and Senator Coons.
I appreciate your calling this hearing and thank the
witnesses for their appearance here today. We will hear from
folks representing all levels of our government, from our
Senate colleagues, state and local election officials as well.
I appreciate their commitment to improve our election process.
This is our second hearing to consider the recommendation
of the President's Commission on the Election Administration.
The Commission recognized that reforms must be implemented at
the state and local level, and that is where recommendations
were focused.
Wisely, the Commission did not call for federal legislation
to implement their recommendations. Our Committee can call
attention to the Commission's recommendations and promote their
adoption, I think, without seeking to impose and through
enactment of federal legislation, with all due respect to my
colleagues.
I know my colleagues here today have legislation that seek
to do just that, but I think the Commission found, and I agree,
that for these reforms to be effective, they must be adopted by
and tailored to the needs of the local communities that will be
responsible for implementing them. Imposition of federal
requirements, though perhaps well intentioned, could make
things worse rather than better, as we have seen with the
Federal Voting Machine Certification Program which has stifled
innovation and increased costs while actually impeding
utilization of the best, most modern technologies.
I am pleased to see that states are adopting many
recommended improvements on their own, and seen very positive
results. I hope we will not advance any federal legislation
that could hinder that progress.
With that, Mr. Chairman, I want to thank you again. Thank
the witnesses for appearing here today, and I look forward to
their remarks.
Chairman Schumer. Senator Warner.
OPENING STATEMENT OF SENATOR WARNER
Senator Warner. Thank you, Mr. Chairman. Thank you for
calling this hearing, and looking forward as well to the
testimony of Senator Boxer and Senator Coons.
I just want to point out one of the things that drives such
interest for me in this issue is that we can and must do
better. In Virginia in 2012, we saw folks wait up to five hours
in line in America to vote. That is just unacceptable. We saw
in Fairfax County, in a precinct in Skyline, folks waiting
until about 10:00. We saw in Woodbridge, Virginia folks waiting
until 10:45, and I would say our voting hours end at 7.
We saw lines, similar lines downstate in Chesapeake. And
the idea that this should be accepted as a status quo is
totally unacceptable to me. Part of this may be ratios of
machines to voters. Maryland, I think they are at 1 to 250; 1
to 750 in Virginia.
So those are things that probably should be dealt with at
the state level. But one of the reasons why I am such a
supporter and original co-sponsor of Senator Coons' bill is
that this does not take the one-size-fits-all federal approach
but says, let us go ahead and put some incentive dollars out
there for states to compete on best practices; how we can
assure that we get this fair, swifter approach. I think my
staff pointed out, if we can find ways to deliver beer to ice
fishermen in Michigan in a timely manner in tough conditions,
we ought to be able to find a way, through using technology and
improve systems, to not have folks wait three and four hours to
vote in America at this point.
So I appreciate you calling the hearing, and I know we are
a little pressed by time, so anxious to get to witnesses.
Chairman Schumer. Thank you. And now let us call on our
witnesses. We are honored to have Senators Boxer and Coons with
us. We share their interests--or I do--in finding ways to
improve the administration of elections. I do not agree with my
dear friend Senator Roberts that we do not need any federal
legislation. There are things where the Federal Government can
improve things. But that is why we have hearings here.
So I will first call on Senator Boxer, then Senator Coons,
to proceed as they wish. Their entire statements will be read
into the record.
Thank you so much for coming and caring about this vital
American issue. Senator Boxer.
STATEMENT OF THE HONORABLE BARBARA BOXER, A UNITED STATES
SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. Thank you, Mr. Chairman, Senator Roberts,
Senator Warner, my friends. I am here very briefly--because I
know you have a lot of other things you need to do--to talk
about a bill that I introduced with Senator Bill Nelson. I am
here to talk about a bill that Senator Bill Nelson and I worked
very hard on called the LINE Act of 2014, S. 2017.
The right to vote is something we all share, regardless of
what state we come from. It is really the essence of our
democracy. It is really a gift that we inherited from our
founders. But when you make people wait in line for hours and
hours and hours, and you force them to choose between voting or
perhaps caring for a sick child or going through severe pain as
they wait in line, or perhaps even risking their jobs if they
wait in line, and so many other reasons why people suffered
through this last election, I think their right to participate
in our democracy is fundamentally denied, because many of them
did give up. We know that.
So they say a picture is worth a thousand words, and I have
brief words for you and I have two photos for you. Here is what
we witnessed in states across the nation on Election Day 2012.
If you take a look at this picture--and I can give you smaller
versions of it--this is Florida, Miami, people waiting for
hours and hours to vote. And here are a couple of quotes from
them. Mr. Blake Yagman said, quote, ``I was there for about
three and a half hours. Each of the lines was four to five
hours. It took my mom eight and a half hours to vote,''
unquote.
This gentleman is severely hypoglycemic. He actually--
excuse me for using this word because it is not a nice word--he
spent several hours actually vomiting after standing in the sun
for so long. Ultimately, he had to give up. So this is a
gentleman who we know about, and I am sure, Senator Roberts, he
would be happy to come up here and explain how painful it was
for him.
And who could forget 102-year-old Florida voter Desiline
Victor, who waited in line for three hours to cast her ballot--
102. She almost turned 103 waiting in line. She persevered--
what a patriot--until she got to the ballot box. But many like
her, and younger than her, gave up.
Now, the second one is going to be close to Senator
Warner's heart. At College Park Elementary School in Virginia
Beach, Virginia, the line went all the way from that basketball
court all the way into the building around here. It is just
unbelievable. They were heart breaking stories. At this
precinct, Virginia voter Mary Atkinson said, and I quote,
``Some of us have been out here four hours. I have been here
three and a half hours. I had knee surgery and my knee is
killing me,'' unquote. Another Virginia voter, Robin Marohl
said, quote, ``I cannot tell you how many people I have counted
leaving and saying, 'the heck with it. I am not going to vote
because I cannot get in there,' '' unquote.
Unbelievably, many voters in Florida, Virginia and other
states were still standing in line, as Senator Warner
described, hours after the polls closed and into early
Wednesday morning. Mr. Chairman and Ranking Member and Senator
Warner, we should not apply survival of the fittest to the
right to vote. You should not have to be a marathon runner.
That is not what our founders envisioned.
So when we force people to stand in line for hours, our
right to vote becomes ephemeral. It is not really a right if
you cannot make it. And that is why Senator Nelson and I wrote
this bill. Let me quickly explain what it is, and I hope when
you consider legislation, you can take this idea. I mean, I am
not wedded to every word, but what we said was, we had this
test case in the last national federal election, and we had all
these problems in certain places. In other places, it was
smooth as silk.
So what we say is if you had a situation where voters
waited in line longer than 30 minutes, and this is an idea that
the bipartisan Presidential Commission came out with really,
that you should not have to wait more than 30 minutes. The
Attorney General and the Election Assistance Commission should
identify those jurisdictions where voters waited a long time--
we say 30 minutes; it could be an hour--and then they should
talk to the state, talk to the county, and come up with a
common sense plan to minimize waiting times at those
jurisdictions, because they failed the test.
Now, if there is a problem with Senator Roberts--and I
mean, I know Senator Roberts and I know he has a problem with
this idea of a federal law. But if you crafted it in such a way
that it is not one size fits all, that the local people and the
state people come up with their own ideas, this could be a
really good way to bring experts together to fix the problems
where they occur. So it is not rocket science. Either we have a
right to vote or we do not have a right to vote.
I am so proud of this Committee on all sides for holding
these hearings, because as the senator said it breaks his
heart. I will tell you something--I just got sick looking at
this--on the one hand proud of our people, that they would put
up with this, on the other hand, knowing full well that some of
them, because of their age, because of their circumstance,
because of illness, just could not do it, could not make it,
and lost that right to vote.
So I stand by ready to help you on both sides of the aisle
in any way. We can use our common sense to make this thing get
better, because this is not what America should look like on
election night.
Thank you so much.
[The prepared statement of Senator Boxer was submitted for
the record:]
Chairman Schumer. Thank you, Senator Boxer, for your
excellent testimony. These pictures are worth a thousand words.
Senator Boxer. I will give them to you as a gift.
Chairman Schumer. There are a thousand people, he says.
Senator Boxer. Yeah.
Chairman Schumer. Four thousand in one place, I guess. But
it is an amazing thing that Americans stand in quiet dignity on
cold nights and wait and wait and wait, and it should not be.
Senator Roberts. Mr. Chairman, could I just go on record
that I am opposed to long lines? I mean, I am not----
Senator Boxer. That you are opposed to long lines?
Senator Roberts. I am opposed to long lines and people
waiting----
Chairman Schumer. He is for cell phones only.
Senator Roberts [continuing]. An inordinate amount of time.
I just think we can settle that in Tallahassee better than
Washington. But that is all I am saying.
Chairman Schumer. Senator Warner knows----
Senator Boxer. I hear you, and I think we can craft
something that will allow that to occur if we are smart about
it. I know that my colleagues, very pragmatic, success-oriented
people, are sitting in front of me, and I think you can figure
out how to do it without undue intrusion by the Feds.
Senator Warner. I know we need to get to Senator Coons and
the next panel, but I just want to say, you see this in a place
like Virginia where we have not always had the best record on
voting and protecting voting rights. I mean, this becomes in
effect a de facto poll tax.
Senator Boxer. Yeah.
Senator Warner. Because those who can afford to stand in
line for hours can do it. Those who cannot afford, cannot. And
that is just not the way we should be operating.
Senator Boxer. Well, that is definitely another aspect. I
never thought of it that way. It is an endurance test and it is
also a financial test. So whatever it is, we have to make it
better, I think.
Chairman Schumer. Thank you. And let us hope we can all
work together to come to an agreement on how to deal with this.
Senator Boxer. I stand by to help.
Chairman Schumer. Senator Coons, who also has an excellent
idea, that is cognizant of Senator Roberts' concerns that one
size does not fit all. Senator Coons.
STATEMENT OF THE HONORABLE CHRIS COONS, A UNITED STATES SENATOR
FROM THE STATE OF DELAWARE
Senator Coons. Thank you Chairman Schumer, and thank you
Ranking Member Roberts, for inviting me to testify. And thank
you especially to Senator Warner for his leadership and
advocacy for the legislation I am here to present on, the Fair,
Accurate, Secure and Timely--or FAST--Voting Act.
It is built upon the idea of a federally incentivized
competition between states, incentivizing and rewarding those
states that make substantial improvements to the administration
of their elections in order to make voting faster and more
accessible. It encourages states to put forward their best
ideas, and then through a competitive grant program, rewards
those with the best proposals that have the greatest impact
with the seed money to make it happen.
The critical metrics for this evaluation are clear. In
fact, the bipartisan Presidential Commission on Electoral
Administration, which you just heard from, highlights the need
for all states to improve in a variety of areas which are also
enumerated in this FAST Voting Act: Online voter registration
to enhance the accuracy and efficiency of voter rolls; early
voting by mail or in person so all people who work can also
vote; improving the ability of our deployed members of the
Armed Forces and other military and overseas members to access
ballots and voting materials; electronic poll books for greater
accuracy; enhancing the training of poll workers; and
addressing the needs of voters with disabilities and limited
English proficiency.
We all know what needs to be done. It is time to work
together and get moving. These November 2012 elections were a
critical wakeup call. Tens of thousands of Americans,
Republicans and Democrats in states both red and blue, saw
their fundamental right to vote for the candidate of their
choice limited by exceptionally long lines and confusing
procedures.
We saw errors in voting rolls in Ohio, delays in counting
ballots in Arizona. We saw a waiting line, as Senator Warner
referenced, of nearly five hours in Virginia, and more than
eight hours in Florida. There are documented instances of
voting machines recording an opposite vote of that cast in
states across the country, from Colorado to Pennsylvania.
Frankly, this is unacceptable.
Voting is the ultimate, most foundational civil right in
our free society, and we should treat it accordingly. When a
polling station runs out of ballots, our friends and neighbors
are effectively disenfranchised. When the lines at a polling
station are too long, citizens are forced to choose between
losing their job and forfeiting their right to vote.
As the chairman of the Africa Subcommittee on Foreign
Relations, I have helped lead efforts by our country to
encourage dozens of emerging democracies to make all the
changes recommended by the presidential commission. It is
frankly, to me, an embarrassment that we, the oldest
functioning democracy in the world, cannot make these simple
fixes in a way that allows the states to lead in implementing
reforms.
It does not have to be this way. We can pass the FAST
Voting Act to accelerate the adoption by states of efficient
and effective practices for the administration of elections.
While many states are struggling, there are also some good
examples to follow. Not surprisingly, I offer my home state of
Delaware. We have an exceptional state election commissioner in
Elaine Manlove, who has helped lead the way through her
tireless efforts. An instructive example is her leadership on
eSignature, or electronic signatures.
eSignature is a voter registration method that could be
implemented in registration sites across the country to
streamline the transmission from the Department of Motor
Vehicles to the voter rolls, the selection of party and
registration. In the old system--the need for a signature,
which was accomplished on a paper application, which would then
be collected from DMV locations, transferred to the Election
Commission, reviewed and entered by another person and then
archived--has been replaced with an electronic signature
available on exactly the same interface, collected at the DMV,
transmitted and stored directly and error free in voting rolls.
Because of Elaine Manlove's leadership in Delaware, Delaware
voters experience fewer errors, less wait time and lower
operational costs.
We owe it to our fellow citizens to help spread the lessons
of state innovation in dealing with the challenges of election
administration. As I mentioned earlier, as the oldest currently
functioning--continuously functioning democracy in the world,
we are sadly showing our age in that with these instances in
the 2012 elections, we have failed to make the voting franchise
fully and freely accessible to all who seek it. We cannot stand
idly by as our elections become a ritual in embarrassment. Let
us work together, use competition between the states rather
than one uniformed federal mandate, and demonstrate how our
states can conduct the elections our constituents deserve.
I look forward to working with this Committee, to the
Ranking and to the Chair, and I am grateful to Senator Warner
for his early leadership both in voting and on this bill in
particular. Thank you, Mr. Chair.
[The prepared statement of Senator Coons was submitted for
the record:]
Chairman Schumer. Thank you, Senator Coons. I think it is a
very, very creative idea to deal with this issue and maybe
thread the needle between those who want to see the states have
complete control and the Federal Government encourage the best
practices.
I thank both--I do not have any questions. I know we are
going to have votes at 10:30. We want to get to our second
panel I would like to get to.
Do you have any questions, Senator Roberts?
Senator Roberts. I was going to ask--Senator Warner said he
had a very distinguished career as governor at Virginia. What
initiatives did you think would really help out there with
regard to the lines that you are experiencing or a poll tax on
people when they are voting, or what you said would amount to?
But I know that you probably really focused on this. Can you
single out just a couple of things?
Senator Warner. Yeah. I would say that what we have seen in
Virginia was this problem dramatically increase over the last
decade plus, because we have not changed our ratio of machines
to people, number one. In Virginia, we have elections every
year. And then we have seen this particularly--and
unfortunately, since Virginia has a one-term governor
restriction, I was not able to stay as governor through the
Obama cycles. But you saw a dramatic upsurge in participation
in 2008 and '12, and our system did not keep track, did not
stay in track. So----
Senator Roberts. Was that mostly in Northern Virginia?
Because most of the people were in rural communities.
Senator Warner. No. The picture that was worth a thousand
words--Senator Boxer only got 200 words in on describing the
picture--was actually from Virginia Beach. So we had this in
areas across the state.
Senator Roberts. I see. I appreciate that. I am fine.
Chairman Schumer. Thank you. Thank you, Senator Coons.
Great testimony. Senator Warner has graciously agreed to chair
the second panel, so we are going to turn it over to him.
And I apologize to the second panel. I will have to excuse
myself, but I will assiduously go over your testimony.
Senator Warner [presiding]. Could we go ahead and get the
second panel up here? And with apologies on the front end,
because we do have a series of votes starting at 10:30, which
means we will probably have to leave here at 10:40. So I am
going to ask the panel as they quickly get to the front--all
three of the panelists, please quickly get to the front--that
we keep your testimony to five minutes apiece so that hopefully
Senator Roberts and I will get a chance to get in a couple
questions.
I am going to dispense with the long introductions. Again,
apologies since we got started a little late. But we have Ms.
Linda Lamone, who is the state administrator of elections from
Maryland. We have Ms. Tammy Patrick, who is the federal
compliance officer for Maricopa County Board of Elections in
Arizona. And Senator Roberts, I actually have the individual
who served partially as the head of state board of elections
when I was beginning of my term of governor and has moved on to
Fairfax County; has some ideas as well--Ms. Cameron Quinn, who
is the general registrar for Fairfax County in Virginia--but
she was also chair of the State Board of Elections.
Senator Roberts. I appreciate that very much. Thank you. I
am sorry. I apologize.
Senator Warner. Let us get started.
STATEMENT OF LINDA LAMONE, ADMINISTRATOR OF ELECTIONS, MARYLAND
STATE BOARD OF ELECTIONS
Ms. Lamone. Thank you very much. Linda Lamone, state
administrator of elections for the State of Maryland. I
appreciate the opportunity to testify here today, and in light
of your all schedule, I will try to be as brief as possible.
I am here to talk today about how implementation of
electronic poll books in Maryland has improved the election
administration process. I want to note at the beginning that
under Maryland law, I am required to maximize the use of
technology in election administration, and to that effect, the
governor and the General Assembly has directed me, and I have
implemented, integrated candidacy and ballot databases, a
statewide touch screen voting system, a statewide voter
registration system.
We offer online registration and a campaign filing system.
And we have introduced technology at one of the most public
parts of the voting process, the check-in process. The check-in
process in Maryland, at least, has historically been a very
paper-driven and manual process. And I have with me today, if
the members of the Committee or the staff would like to see
them, a printed paper registrar that used to be used, as well
as an electronic poll book that we use in Maryland to check the
voters in.
With the paper process, you had this huge book of thousands
of pages perhaps and the poll workers would have to leaf
through them and find the voter's name and hope they checked
off the right one--Junior or Senior, so forth--manually mark
the registers and then manually program the cards that told the
voting system what ballot the voter should get. And there were
often mistakes made and voters got the wrong ballot,
Republican, Democrat, so forth in the primaries, and then, of
course, everything had to be manually tabulated.
With the introduction of the electronic poll books, it
streamed the check-in process hugely, provided automated voter
counts, real time instructions for the poll workers, and most
importantly, we did not have to have alpha line breakdowns. The
poll books captured data that helped us a lot both in tracking
patterns, i.e., what time did the polls open, what time did the
voters vote, and gives us information on our poll worker
performance.
We implemented the system in 2006. We currently have 6,800
electronic poll books that will be used in 1,700 polling places
and 63 early voting centers this year. We chose a poll book
that works with our direct recording voting system, touch
screen. As you all probably know, the poll book itself programs
the card that tells the voting system what ballot to present to
the voter.
While there are significant Election Day benefits for poll
books, it would be impossible to conduct early voting, at least
the way we do it in Maryland, with the same level of integrity
without the electronic poll books. For example, if we were to
use the paper registrars in Maryland, the judges would have no
information if a voter is not in the right polling place. With
the electronic poll books, we have all 3.8 million registered
voters programmed on to each poll book.
So if the voter goes to the wrong precinct, our poll
workers can tell him or her where they should go, not literally
but really--and as I said, equally important, there is no need
to have the alpha check-in, so that you might have a line from
A to C and no line and then one of the others, and people get
very frustrated by that.
During early voting, our poll books are all connected
throughout the State of Maryland so that when a voter checks in
at one early voting center, the poll books throughout the state
know that that voter has now voted and helps protect the
integrity of the system.
Senator Warner. What was the cost of the system?
Ms. Lamone. The cost of the system was, when we bought
them, I think it was about $3,000 a piece. Baltimore County,
for example, has 847 of them, so they spent about 2.6 million.
Now, they were expensive; I admit that. But how do--what is the
cost for integrity and accuracy of the election, I guess is the
response.
So we have the virtual private network. It protects the
integrity. With the paper-based system, you might be able to
eventually detect that someone voted twice, but you would never
be able to prevent it. With the poll books, you can do that.
And then Montgomery County, for example, which is our
largest jurisdiction, all nine of the early voting centers have
complete lists of all the 625,000 registered voters in
Montgomery County. So there again is another benefit of the
poll books. Another one is the--in a jurisdiction in Maryland,
a gubernatorial primary there can be over a hundred different
ballot styles in each precinct, and with the poll books, you
guarantee that the voter is getting the correct ballot style.
The other real big advantage--and I see my time is running
out--is it helps the efficiency of the canvas, because after
Election Day, we load the entire results from check-in voters
into our central system, and that is available to the counties
for the canvas. So when they are doing their absentee and
provisional, they know exactly who has voted--either early
voting or on Election Day--and therefore, either not count the
absentee or not count the provisional ballot. Without the poll
books, that would be very difficult.
The other real value to them----
Senator Warner. Can you wrap up in a minute, because we
have a 10:30 fairly hard stop. We do not get to wait three
hours in line voting in the Senate. We have to actually vote in
a timely fashion, and I want to make sure we get all of the
testimony in.
Ms. Lamone. One of the early concerns that we had was how
would the poll workers adopt to the poll books, and we found
that when we gave them some training, they just simply love
them, absolutely love them. And with that, I will stop.
[The prepared statement of Ms. Lamone was submitted for the
record:]
Senator Warner. Ms. Patrick.
STATEMENT OF TAMMY PATRICK, FEDERAL COMPLIANCE OFFICER,
MARICOPA COUNTY ELECTIONS
Ms. Patrick. Thank you, Senator Warner. It is an honor to
be here today to discuss voter registration modernization. I
was honored last year to be appointed by the president to the
Presidential Commission on Election Administration, and in
January, we issued our report on recommendations to improve the
voting experience in America, which we recommend online voter
registration, sound data collection, and analysis.
In 2007, I worked with the Pew Center on the States and the
Brennan Center and studied online voter registration, its cost
efficiencies and quality. The result of that collaboration is
the oft cited 80-cent processing cost savings for every online
voter registration that we receive. And we average--325,000, or
70 to 80 percent of our total voter registrations, annually
come online.
After the aforementioned reports were published, I spoke to
election officials and state legislatures around the country
about online registration. And I have included my testimony, in
my written testimony, a presentation that I gave to the
National Conference of State Legislators at their national
conference in 2012.
There are a couple of points I would like to highlight from
that presentation. In addition to the cost savings, there are
the benefits of access, accuracy and improved security. Voter
registration, particularly for states with mobile ready
systems, is now available any time anywhere for voters.
Election administrators lament when voters do not keep their
information current, but it is incumbent upon us to reduce
every possible barrier to the voters doing just that.
With the saturation of internet connectivity with smart
devices, access to this channel of voter registration is no
longer isolated to a small segment of our population. There are
additional quality benefits to the voters themselves entering
in their information, first, no more interpretation of
illegible handwriting. Secondly, should a keying error occur, a
voter is more likely to notice that their information has been
entered incorrectly.
In a paper-based system, applicants complete a form replete
with personal information: their signature, date of birth,
Social Security number, and then hand it over to a complete
stranger. The registration of voters is a noble task, and I do
not mean to denigrate it in any manner, nor imply that
registration drives should be curtailed. However, we need to
improve the process and capitalize on these efforts.
Currently, most forms are turned in on the final deadline
for voter registration. But if registration drives submitted
forms electronically, the voter is more likely to make it on to
the voter rolls on Election Day, particularly if ePoll books
are used.
Which brings me to my final point about the benefits of
online systems, and that is the ease of expansion. Washington
State improved upon the basic system interface with the
Department of Motor Vehicles to allow for all NVRA agencies,
registration drives, campaigns, et cetera, to get their own
exclusive URL extension that allows for data to flow directly
into the online system but still have the source of origin
tracked. This encourages use of a more efficient system, while
giving the users the information that they want--who did they
actually register--but not providing them with the voters' more
sensitive information and signature. This system has allowed
the Secretary of State's office in Washington to expand their
footprint with innovative partnerships with Rock the Vote and
Facebook.
Improving the data flow, particularly with the Department
of Motor Vehicles, is crucial to success. Even in states like
Minnesota, where they have Election Day registration, they have
found that these applicants, the vast majority of the voters,
had applied and updated their information with the DMV, so
regardless of the systems, streamlining these governmental data
sharing relationships is a benefit to the voter.
Increasing the ability to easily track voter registration
forms cannot be underrated. Twenty years after the NVRA was
passed, we still have issues with the enforcement of the law
and participation. In San Diego County, California, they saw
this first-hand when they implemented a more robust tracking
mechanism that allows them to identify the volume of
registrations coming from each distinct NVRA office. This
improvement, going from less than a thousand forms a year to
10,000 forms from NVRA agencies in 2012. Online systems aid in
the ability to effectively track applications and therefore,
ensuring compliance.
One of the most critical aspects of the expansion of the
online system is that it can be used to reach our military and
overseas voters. The UOCAVA voter not only benefits from online
services but is more reliant on them than any other voting
population. With minor additions, the fields present in the
Federal Post Card Application that are not on a standard
registration form can easily be added. This could, however,
create a legal quandary for some states who do not consider our
UOCAVA voters to be full, actively registered voters. They do
not accrue a voting history in these states. They are not taken
into consideration in the turnout calculations, and their voter
registrations, not just their absent ballot applications, are
canceled at the end of the FPCA time period.
The real question is then why have not more states
implanted the registration of online voters? It is my belief
that it is probably out of fear that it somehow may benefit the
other side of the aisle. However, there are blue states and red
states that have implemented it, and when you look at the data
of who is using the online registration, the political
composition reflects that of our voting population as a whole.
Lastly, the use of the online system was most often used to
keep registrations current, not just as an entry into the
system itself--the very behavior we ask of our voters.
And with that, I will be happy to answer any questions we
have, should there be time.
[The prepared statement of Ms. Patrick was submitted for
the record:]
STATEMENT OF CAMERON QUINN, GENERAL REGISTRAR, FAIRFAX COUNTY,
VIRGINIA
Ms. Quinn. Thank you very much. I appreciate the
opportunity to speak here today. And Governor Warner, I
appreciated your leadership when we worked together, and I am
glad we have a chance to do so again.
I want to make three points in talking about innovation and
administrative improvements and cost savings. Number one,
technology can be a huge plus, really a huge benefit. Number
two, not all technology ends up being a huge plus or benefit,
sometimes because the technology was not set up properly in the
first place; sometimes because of software and sometimes
because of people skills that are needed to use it. And the
third point is, we do not have enough election officials
already, and we are really lagging in being able to attract the
ones we need with the right skill sets.
In addressing online voter registration, technology can be
a huge plus, and online registration is already proving the
case in Virginia. It started in July of this last year, and
about 23,000 people registered online, without a lot of
publicity about the whole thing, in time for our November
elections.
On the day that registration closed, 3,000 people across
the state effectively were able to register or change their
address online. A thousand of them were in Fairfax County. That
thousand people who registered online saved us three seasonal
staffers spending two weeks doing nothing else but entering
those thousand registrations. It made a huge difference for us.
By the time we get to 2016, this is going to be an enormous
plus.
Tammy has talked about all of the benefits that you get,
the ease of being able to get things right, the ease for
everybody in doing it. I will not go over those, but that is
going to be terrific, just terrific.
But not all technology is a panacea, and in fact, our
experience with electronic poll books in Fairfax County has
been rather challenging and troubling. I think some of this may
have been due to the particular choices made by the electronic
poll books solution which Fairfax adopted. We continue to have
some kind of issues with our technology and sometimes it is
hard to tell if it is hardware or software.
Having said that, we think electronic poll books are worth
continuing to work with, but we are hoping when we finish our
imminent acquisition of new voting equipment in Fairfax County,
we will then turn around and acquire new electronic poll books
that will be easier for everyone to use.
I would note that in addition, one of the challenges with
technology is introducing it early enough you have time to work
through the kinks. And fortunately, despite all the kinks, we
did that in Fairfax County with the electronic poll books. We
are doing that with the new equipment. We are determined to
have this equipment in use for this fall's elections, which is
a relatively easy administrative election, so that when we get
to next year, when we have the highest number of ballot styles
in the state--for the 2015 elections, we have already worked
through a lot of the kinks. And by the time we get to 2016,
many of our voters who are regular voters will be comfortable
with the new equipment, making it easier to focus on those
people who only vote once every four years.
And the third point, when I started in elections 15 years
ago, election officer recruitment was already a challenge in a
number of places usually your large suburban and urban areas
where they struggle to get enough people to serve at a polling
place on Election Day. It has only gotten worse. And one of the
things that is sort of stunning--but the last week, or week and
a half, before an election we will lose 10 to 15 percent of our
election workers who said they would serve, which means we are
typically struggling to get up to the number we wanted to
recruit in the first place.
So this is already a huge problem, and it has been
compounded by the use of technology in the polling places,
because one of the things we found in some of our places with
longer lines was that our election workers were not checking
voters in very well because they were not very comfortable
using the technology.
Now, understand, the nice thing in Fairfax is we can
provide classes for people, and they can come back again and
again and make themselves more comfortable. We still have
people with all that training who were not comfortable and were
trying to use the technology, and in fact, the technology made
it harder in some places rather than easier.
So we need to be, in addition to just recruiting more
election officers, recruiting people who are comfortable with
the technology which is going to become the absolute critical
foundation for our polling place operations with new equipment
and electronic poll books.
So those are my points. Thank you for the opportunity to
speak. I will be happy to answer any questions.
[The prepared statement of Ms. Quinn was submitted for the
record:]
Senator Warner. Well, thank all three of you for your
comments. I have two questions, and we are going to keep
plowing until votes start.
First, I guess, is as somebody who is--and I think in
Virginia we have had our--generally speaking, a very good
system. I cannot comment much on the others. We have the
challenge in Virginia that we have elections every year, so we
get to retest in a major way every year.
It seems from a couple steps that there have been
secretaries of states or boards of elections and others--
unfortunately, it seems like this has gotten a little more
political, again, on both sides than it was in the past. Do you
all feel, particularly as we look at technology and we think--
Ms. Lamone, when you mentioned you buying that in Maryland in
'06, it is still a relatively short period of time as we move
into this new technology. Is there enough sharing between
states and then within states of best practices?
Ms. Quinn. Mr. Chairman, if I could actually start that by
saying, when I was at State Board and Linda Lamone was at the
Maryland State Board, we were working together on a number of
issues, and I very much appreciated the fact that I could call
her up, she had a little more experience than I--and she would
give me some great suggestions and ideas on how we could do
things.
The answer is yes. The biggest challenge is that you do not
typically get to meet that many people outside your state to be
able to share those ideas.
Ms. Lamone. And the states are so different in the way they
run elections, Senator. In Maryland, it is all centralized. I
am the leader of the pack, and the Board and I establish the
policy based, of course, upon the law that is enacted. So the
local jurisdictions do not have much discretion.
So to answer your question, we do share. We are constantly
interacting between the state and the counties in Maryland. But
in other jurisdictions, I think, you all would agree, I mean,
there are some states where it is very disparate and there is
not a lot of sharing that goes----
Senator Warner. Ms. Patrick, I am going to ask one last
question. You get to answer first and then we will take the
others. I am going to--again, I think we are down to 13
minutes.
One of the things that I think drives a lot of us was the
seeing of the long lines, why we are saying we have to figure
out a way to fix this. I guess very quickly--and if you want to
submit longer answers as we sort through a solution set--and
recognizing the very legitimate concerns Senator Roberts raised
that this should not be kind of a one-size-fits-all federal
proposition, is the biggest challenge number of machines per
voter ratio? Is the biggest challenge the check-in process? Is
the biggest challenge not knowing the surge capability in a
particular precinct? Obviously, the lines mostly appear in
presidential elections. Is it, as Cameron mentioned, the
biggest problem having election officials who are fully trained
up?
If you could be brief and then give me a longer answer.
Because I think the heart of this, we are trying with ideas
that--we think competitive grant program, or some of the ideas
that Senator Boxer had, but you guys are the experts.
Ms. Patrick, you get first----
Ms. Patrick. Thank you, Senator. So the answer is yes, all
of the above. Of course, it is----
Senator Warner. You are not a senator, Ms. Patrick. You
cannot give the all-the-above answer. That is what we would do.
On the one hand . . . on the other hand.
Ms. Patrick. If I were to say that the number one issue
that affects most of the areas where we have long lines, it is
voter registration. It is the archaic nature with which we
register voters, maintain the voter registration.
Senator Warner. Not ratio of machines?
Ms. Patrick. I do not believe it is the ratio of machines,
although there are issues in some cases with machine ratios,
but that really only ties into the places where they are using
touch screen voting machines, because that is the only point
where a voter can cast their ballot as opposed to places that
are using optical scan where you can hand out 100 ballots and
people can vote them at the tables in the school cafeteria.
So I do not think it is necessarily the voting machines,
but it could be resource allocations as far as how many ePoll
books there are, how many poll workers there are, how many
booths are being present. So that is why the Commission
conveyed in our report that we have a toolkit of resource
allocation tools where local administrators, state
administrators can go in and check their own formulas to see
against the ones from MIT and some of the other places.
But it all ties into your first question that has to do
with the professionalism of the field, and that is something
that we discuss in here as well. Because there are some states
that have strong state leadership or they have strong state
programs where the counties can share information and the best
practices amongst themselves.
And what you found, and what we found as the Commission
went around the country, is that we see the same counties, the
same representatives at all of these national meetings, because
not everyone can afford to attend the national conferences. So
it is very distinct across the country, whereas, if you had--
each state had a very rigorous program--to take some of that
information they received and share it with the counties, that
everyone would be much better off, I believe.
Senator Warner. Lighting round, Ms. Lamone and Ms. Quinn.
Thirty seconds each, and my apologies to the witnesses. Very
important hearing, but I am going to have to go over and vote.
Ms. Quinn. The answer is, the problem changes depending on
the precinct. But, more EOs help. If you have more election
officials, you are more likely to be able to solve problems and
keep lines moving. But I gave GAO about a five-page outline of
all the reasons you can have a problem with polling places, and
there really are that many.
Ms. Lamone. And I second that. And it is money. Money is
always an issue.
Senator Warner. It is interesting. I would have thought
perhaps it was more about machines, but you are saying it is
more about process of getting registered and the quality and--
not quality--the quality and knowledge of the election
officials?
Ms. Patrick. As I mentioned, the quantity of the machines
is really only tied into the touch screen, the DRE voting
equipment, with the exception of places like Florida where they
had five- and six-page ballots. For the first time I think in
many places' history, there was congestion at the optical scan
machine because every voter had to feed in five and six pages,
and then there would be, you know, subsequent jams when they
try and put them all in at the same time, that sort of thing.
So that was really an exception to the rule, and thankfully
and hopefully an anomaly.
Senator Warner. Recognizing that this has traditionally
been a state function--although I would think that, you know,
we did have Federal Motor Voter at one point that did have
resources and others to incent states. I would, again, come
back to Senator Coons and I are working on this notion of a
competitive grant process that would not mandate the state does
X, Y or Z, but if we could get the kind of best practices and
then create some competition amongst states, I would like in
your written answers, if you could give me some comments on
that, and if you think it is dreadful, probably easier to say
that in written comments versus in a hearing.
So without objection, and with apologies to the very good
witnesses, and the fact that we got started late, and your
professionalism and your approach, I am going to say without
objection the hearing record will remain open for five business
days for additional statements and post-hearing questions
submitted in writing for particularly our second panel of
witnesses to answer.
I would say that, again, just editorially, the long lines
we experienced in Virginia and across the country, that just
should not be in America in the 21st Century. So I urge us to
continue to press us and press your colleagues across the
country to figure out a way to get this right.
With that, without any further objection, since there is
nobody else here to object, the hearing is adjourned. Thank you
all.
[The prepared statement of Senator Nelson was submitted for
the record:]
[Whereupon, at 10:41 a.m., the Committee was adjourned.]
APPENDIX MATERIAL SUBMITTED
----------
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
HEARING--ELECTION ADMINISTRATION:.
MAKING VOTER ROLLS MORE COMPLETE AND MORE ACCURATE
----------
WEDNESDAY, APRIL 9, 2014
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 10:08 a.m., in
Room SR-301, Russell Senate Office Building, Hon. John Walsh,
presiding.
Present: Senators Walsh and Roberts.
Staff Present: Jean Bordewich, Staff Director; Stacy
Ettinger, Chief Counsel; Veronica Gillespie, Elections Counsel;
Ben Hovland, Senior Counsel; Abbie Sorrendino, Legislative
Assistant; Phillip Rumsey, Legislative Assistant; Jeff Johnson,
Clerk; Benjamin Grazda, Staff Assistant; Julia Richardson,
Senior Counsel; Mary Suit Jones, Republican Staff Director;
Paul Vinovich, Republican Chief Counsel; Trish Kent, Republican
Professional Staff; and Rachel Creviston, Republican
Professional Staff.
Senator Walsh. We will now proceed to our hearing schedule
for this morning.
This hearing is the committee's third in a planned series
on improving the administration of elections. Today's hearing
focuses on making the voter rolls more complete and more
accurate.
Chairman Schumer wanted to be here today, but was not able
to attend due to other business. He has a statement that,
without objection, will be entered into the record.
[The prepared statement of Chairman Schumer was submitted
for the record:]
OPENING STATEMENT OF SENATOR WALSH
Senator Walsh. I would like to now make a few opening
remarks.
Montanans are very proud of their election system. Our
country's democratic tradition is something that should make
all Americans very proud. At the core of this tradition is the
fundamental right to vote. Of course, Americans' ability to
exercise their right to vote is only as good as our system of
election administration. We must work to make sure voter
registration is accessible and accurate. That is why this
series of hearings is so needed and why I am pleased to be here
today to discuss these very important issues.
This bipartisan Presidential Commission on Election
Administration identified common sense State and local
innovations that are improving how elections are run. These are
not partisan proposals. They are simply matters of good
governance that will make voting easier while saving taxpayers
dollars. Registering to vote and voting should be as accessible
as possible, regardless of where voters live.
At the hearing held by this committee last month, we heard
from State and local administrators about their implementation
of online voter registration and electronic poll books. We
heard how these reforms have the potential to save States money
and free up local government.
I support these proposals. These common sense innovations,
like online registration, would have an enormous impact in
rural States like Montana, where distance can be a barrier to
voting and voter registration for seniors, voters with
disabilities, veterans, farmers and ranchers, and Native
Americans.
Today, the Rules Committee is holding a third hearing on
the Presidential Commission's recommendations. Today's focus is
on innovations that help Americans get registered to vote or
ensure their registration is current, while also making sure
their voter rolls are as accurate as possible.
The committee is fortunate to have a panel of current and
former State elected officials who are working every day to
improve how elections are run in their States. The reforms they
will talk about focus on the voter registration process. As we
learned from the Presidential Commission report and from
Commissioner Tammy Patrick's testimony at the March hearing,
many of the issues that occur on election day can be prevented
by making improvements early in the registration process.
Making registration easier and more accurate will reduce lines,
expand access, and save money. Solving issues before they
become problems is the type of common sense solution that we
should be providing to our constituents.
Also during the March hearing, Senator Coons highlighted
the efforts of one of our witnesses, Elaine Manlove, the State
Election Commissioner from Delaware. I am interested in
learning more about the e-Signature program that Delaware has
used to streamline the voter registration process at motor
vehicle offices.
We also have witnesses here today to tell us about a multi-
State effort known as the Electronic Registration Information
Center, or ERIC. This program, which aims to improve the
accuracy of voter rolls, is making a difference for the member
States. So, I look forward to learning more about the ERIC
program and how it is helping to engage voters, improve the
quality of the voter list, and improve election administration.
I would like to thank all of our witnesses, and I look
forward to your testimony.
With that, Senator Roberts, do you wish to make any opening
remarks.
OPENING STATEMENT OF SENATOR ROBERTS
Senator Roberts. Well, thank you, Mr. Chairman, for
agreeing to chair this hearing. It is my pleasure to welcome
you to the committee, sir.
We have a good panel of witnesses here today. I look
forward to hearing their testimony. I will have some questions
following the testimony, but at this point have no further
statement at this time to expedite the hearing.
Thank you, sir.
Senator Walsh. It does not look like we have any other
members who are going to make any comments today. Do we have
any members that have submitted anything to be added to the
record?
Okay. We will now hear from our panel of witnesses. First,
Ms. Elaine Manlove, the State Election Commissioner of
Delaware.
STATEMENT OF ELAINE MANLOVE, DELAWARE STATE ELECTION
COMMISSIONER, DOVER, DELAWARE
Ms. Manlove. Good morning, and thank you for inviting me to
discuss Delaware's e-Signature program.
Let me start with a little background. I began working in
the Department of Elections for Newcastle County in 1999, so my
first big election was in the 2000 general election. While the
country focused on Florida, I was concerned about the 50 court
orders that we had requested for voters who came to their
polling place assuming they were registered voters but were not
on the poll list. Sometimes, this was a husband and wife. Only
one would be on our rolls, while they were both certain they
had registered at DMV. Our Election Offices could check DMV
records and see that they had been there, but we had no
application or declination.
Our process was paper, and if we did not get the paper, the
voter did not get registered. There were too many reasons for
this--there were many reasons for this, but at the end of the
day, the voter was the loser. Some of the problems with the
paper process were DMV would be out of applications in the
printer, the printer would jam, the voter would leave without
signing.
Every day, we picked up the applications from DMV and
matched them with the electronic list of the applications we
should have received. They were then mailed new applications to
those citizens whose applications we did not receive. About
half of those came back to Elections.
I knew there had to be a better way to do this. As is
always the case, every idea we had cost money and there just
was none. Then came HAVA. Since Delaware's voting machines were
fairly new and we had already met the Statewide database
mandate, we decided to focus on the use of technology to
improve all of our services. Our Department of Technology and
Information hired two HAVA-paid programmers to focus on what we
called the Elections Wish List--all the projects that we knew
would improve our services, but were too large in scope to be
handled by the programmers assigned to Elections by DTI.
I thought the struggle was behind us until we started
meeting with DMV. No one said, no, this cannot be done.
However, our meetings never seemed to move forward. DMV worried
that our solution would slow their lines. Then, on the election
side, when we were in election mode, we would have to move our
focus back to that.
In 2007, a new DMV Director was appointed and this project
moved forward quickly. Early in 2009, e-Signature went live. It
was a success from day one. I want to emphasize that this was
not rocket science, just a common sense solution to an ongoing
problem.
The DMV clerks work from a script that is in front of them
on their computer screen. They can tell if their customer is a
new registrant or is already registered to vote. That fact
determines which screen comes up in front of them and the
questions they ask. They collect name, address, Social Security
numbers, and date of birth, as well as any additional
information for DMV use.
The customer verifies their voter information on the screen
of the credit card device on the counter. If their information
is correct, they are asked if they want to register to vote or
update their information with the Department of Elections. On
the next screen, the voter affirms their citizenship, chooses
their political party, and signs. All of this is captured and
transmitted to Elections in real time.
Customers can go to any DMV in the State. Their voter
registration application will be sent to a queue in the
Election Office in their home county. The Elections Office will
determine if this is a duplicate, run a felon check, and
process their polling place card. All voter registration
decisions are made in the Election Office, removing that onus
from DMV.
My goal when we started this project was just to ensure
that we received every application. What I did not anticipate
were the unintended consequences. We had no paper, no paper to
pick up at DMV, no paper to file, no paper to verify, no paper
at all. This saved us space in all three county offices. Rows
of filing cabinets were eventually eliminated. Time, no paper
to file, and no files to go through on election day when we
needed to prove that a voter was registered, and money at both
DMV and Elections. Elections eliminated five vacant positions
for a $200,000 annual savings.
Once phase one was complete, we changed the process for
mail applications. We began scanning in any paper applications
that came into our offices, Federal mail applications, et
cetera. Our clerks still have to do data entry on those
applications, but they electronically link that entry with the
paper application containing the signature. The paper
application can then be shredded.
Our next phase was to take this technology to Delaware's
Health and Social Service Agencies as well as our Department of
Labor, the other two agencies in Delaware that do voter
registration. We began first at Health and Social Services and
provided computers and credit card signature devices. However,
the numbers have not increased as much as we had hoped. In
today's economy, both agencies are being encouraged to offer
online applications for their customers. Our solution is in the
works. We will very soon link our online voter registration
process to their online system for both of those agencies.
In closing, the initial cost for DMV project was $600,000.
With newer technology today, it would be less. It has paid for
itself by savings to both DMV as well as Elections. It has also
saved time. DMV's initial concern was that we would slow their
lines, because they allocated 90 seconds for the elections
piece of each customer transaction. It is now 30 seconds.
Delaware has shared our solution with many States. It is an
easy solution that works well for both agencies and could work
well for other States.
Thank you.
[The prepared statement of Ms. Manlove was submitted for
the record:]
Senator Walsh. Thank you, Ms. Manlove, for your testimony.
Second, Mr. John Lindback, the Executive Director of the
Electronic Registration Information Center. Mr. Lindback.
STATEMENT OF JOHN LINDBACK, EXECUTIVE DIRECTOR, ELECTRONIC
REGISTRATION INFORMATION CENTER, WASHINGTON, D.C.
Mr. Lindback. Thank you, Mr. Chairman.
ERIC, as you said, stands for the Electronic Registration
Information Center. The mission of ERIC is to assist States to
improve the accuracy of voter rolls, reduce costs, and improve
the efficiency for State and local election offices. ERIC does
that by using state-of-the-art sophisticated data matching
technology to match voter registration records against motor
vehicle licensing records in its member States. It also matches
those records against databases such as the Social Security
Death Index and the National Change of Address Information from
the U.S. Postal Service.
ERIC was initially formed with the generous financial and
technical support of the Pew Charitable Trusts, but it is now
fully operational, self-governing, self-supporting, and an
independent organization governed by the States. The current
members are Colorado, Delaware, Maryland, Nevada, Utah,
Virginia, and Washington. Those are the seven States that
originally formed ERIC. Since that time, the District of
Columbia, Oregon, and Connecticut have joined.
The organization is State run. It is governed by membership
agreements and a set of bylaws. There are two full-time
employees. The States are now receiving routine uploads and
reports and we are recruiting new members.
The reports that the States receive after the matching of
all that data is they get information about people who have
moved--people on their voter registration lists who have moved
within their State, people on their voter registration list who
have moved across State lines to other ERIC States, people on
their lists who have died. They get information on in-State
duplicate registrations, in case you have a registration for
the same person in more than one county, for example. And, they
get a report on potentially eligible but unregistered
individuals that reside in their State.
The numbers so far, and these are from the seven original
States that formed ERIC that have reported back to them, is
that there is a total of about 1.6 million records that have
been reported back to the States. That includes almost 1.3
million people who have moved within their State and they had a
more recent address on file with their DMV. It includes about
just shy of 230,000 people who have moved across State lines
within the ERIC States, about 47,000 people who were on the
rolls and were deceased, almost 30,000 duplicate registrations
within those State voter registration databases. In addition,
ERIC has reported to them the names of about 6.1 million people
who are on their DMV list but are not registered to vote,
spread out among all those States.
The benefits to the States are numerous of ERIC. There are
financial benefits. When you have a more accurate list, you get
financial benefits, for example, because there is less returned
mail. There are savings by joint purchases of Death Index data
and NCOA data that the States are now individually purchasing
on their own, but ERIC now purchases as a group.
On election day, cleaner rolls mean savings at election
time because there will be fewer problems at the polls. Pre-
election day, it means a reduced spike in registration activity
at election time. It is uncanny, if you look at registration
activity in the States. It is fairly even until you get to a
Presidential election. Then, there is a huge spike in virtually
every State that you look at, and that presents an
administrative issue. You have to bring in extra people to
hand-input all those registrations, et cetera. If you can even
out that activity and get those updates taken care of earlier
in time, you can reduce that spike of activity.
Also, additional benefits include a proactive approach by
the ERIC States. It discourages election-eve matching by
interest groups who are sometimes fond of doing that match very
close to an election and then claiming that the voter rolls are
full of people who are deceased or are otherwise inaccurate. It
also demonstrates for the ERIC States that they are doing
everything they can to keep their rolls clean and up to date.
And I will wrap up my testimony there, Mr. Chairman, and
remain open to questions.
[The prepared statement of Mr. Lindback was submitted for
the record:]
Senator Walsh. All right. Thank you, Mr. Lindback.
Next, we have Dr. Judd Choate.
STATEMENT OF JUDD CHOATE, DIRECTOR OF ELECTIONS, COLORADO
SECRETARY OF STATE'S OFFICE, DENVER, COLORADO
Mr. Choate. Good. Thanks. My name is Judd Choate. I am the
Election Director for the State of Colorado and Chairman of the
Board for ERIC, the organization that John just described.
Under the leadership of Secretary of State Scott Gessler,
Colorado has implemented mobile optimized voter registration,
worked with the Federal Government to identify non-citizen
voters, and actively participates in the ERIC project, making
Colorado a national leader in voter initiatives. For instance,
during the 2012 Presidential election, Colorado helped lead the
way with some of the highest voter turnout levels in the
country. I am happy to be here today to share our experiences
and best practices.
Let me tell you about Colorado's experience as an initial
ERIC State. Colorado joined ERIC in July of 2012, along with
the six States that John just listed. Two months later, in
September of 2012, we sent postcards to 723,000 people,
encouraging them to register to vote prior to the 29-day
registration deadline for the Presidential election. Just over
ten percent of those contacted, 74,528, registered to vote
prior to the deadline. Of those, 32,000, or about 44 percent,
voted in the 2012 election.
ERIC also provided Colorado with data to clean their voter
rolls. ERIC has the unique ability to link files in various
formats, using minimum matching criteria. This process marries
data to find electors that have moved. ERIC provides the States
four kinds of data to clean their rolls, matching data to
indicate a move within a State, a move from one State to
another State, matching data indicating that two files are
actually the same person, and matching data indicating that a
person on the State's voter rolls died outside of the State and
is listed on the Social Security Administration Death List.
Colorado's most recent Clean Report, which is the report we
receive from ERIC, covered the months of January and February
of 2014. So, for only those two months, we received from ERIC
26,320 in-State movers, 1,181 people who have moved out of
State--and just to clarify, that is only out of State with
those States that are participating; if we had all 50 States
in, we would receive a lot larger number--112 voters who have
more than one registration--the reason why that number is so
low is because we have used ERIC over the last several months
and that number has been reduced because of our participation
in ERIC--and 2,180 dead voters who died outside of the State of
Colorado in only those two months.
Colorado developed and rolled out online voter registration
in 2010. By using online voter registration both in the mailing
to voters encouraging them to register and in mailing to people
who have moved out of State, encouraging them to cancel their
voter registration, Colorado has maximized the integrity of
their voter rolls. Online voter registration makes it easy and
straightforward for people to register, update their
registration, or cancel registration when that voter moves to
another State.
ERIC is the future of elections. It cleans rolls. It finds
possible new voters. It allows jurisdictions to proactively
work with their voters, our customers, instead of reacting to
bad mailing addresses 12 months after that voter has moved.
And, as more States join, the system will work better because
there will be more data to match.
Another program lauded by the Presidential Commission and
important to Colorado's efforts to improve list maintenance is
the Kansas Cross-Check. The Cross-Check is also a data matching
program where 28 States send their voter files to Kansas
following the general election. Since 2008, Colorado has
identified approximately 15 people who very likely voted in
Colorado and another State in the same election. Several of
these suspected double-voters received a visit from the FBI,
and a handful were charged with double-voting in our partner
States of Arizona and Kansas.
Colorado's experience in ERIC and the Kansas Cross-Check
has been very positive. We have registered new voters at an
impressive rate. Our voter registration database is improving
all the time. And, we protect the database from fraud and
double-voting.
Thank you for the opportunity to speak, and I will take any
questions you might have.
[The prepared statement of Mr. Choate was submitted for the
record:]
Senator Walsh. Thank you, Mr. Choate.
And, fourth, Mr. Chris Thomas, the Director of Elections in
the Michigan Department of State and a member of the
Presidential Commission on Election Administration.
STATEMENT OF CHRISTOPHER THOMAS, DIRECTOR OF ELECTIONS,
MICHIGAN DEPARTMENT OF STATE--BUREAU OF ELECTIONS, LANSING,
MICHIGAN
Mr. Thomas. Good morning, Mr. Chairman and Senator Roberts.
I thank you for the opportunity to testify today. It is a
pleasure to be here to talk about the Presidential Commission
on Election Administration's recommendations about the Motor/
Voter Program instituted by the National Voter Registration Act
of 1993.
I know of no other voter registration program that has the
scope or diversity as motor voter. No other program offers the
level of potential improvement to the election system of this
country.
I began my career in election administration in 1974 here
in Washington and have served as Michigan's Elections Director
since 1981. I am pleased to see the Pew Report on Election
Performance again showed Michigan as a high-performing State.
In 1975, Secretary of State Richard Austin came up with the
idea of Motor/Voter. In Michigan, the Department of Motor
Vehicles (DMV) and the elections are controlled by the
Secretary of State, and he thought it was a great idea that if
people are standing there to get a license, that they ought to
be asked to register to vote. Our Motor/Voter system is totally
integrated with the DMV data. For example, our law requires
that people use the same address for both voting and driving,
and all of the electronic data that comes from the DMV gets
sent to the local clerks, which means they do not have to
reenter that data. Over 80 percent of our annual voter
registration transactions come through the DMV.
I was honored to be on the Commission and to serve there.
We did not have a legislative agenda, so I am not here
advocating any legislation today.
We found that the DMVs come up short in terms of
implementing the Motor/Voter law, which is over 20 years old.
We used the U.S. Election Assistance Commission (EAC) data and
testimony as the basis for this conclusion. In addition to
Michigan and Delaware, represented by my colleague who is here
today, are the only two States that are fully compliant, in my
view. Seven other States have made a concerted effort. In my
view, if a State receives less than 50% of its total
transactions, from the DMV, the DMV is not doing its job.
The Commission took a strong position on this because the
negative consequences of a bad administration in DMV are
reflected on election day. So, I would like to make the
following points about DMVs and Motor/Voter.
First of all, DMVs have an extremely complex mission. They
have a huge workload. In many States, they have aging legacy
computer systems, and many of them are undergoing modernization
now.
The beauty of Motor/Voter is it cuts across all political
and socioeconomic strata. For example, in Michigan, 75 percent
of those receiving public assistance who are registered voters
registered to vote with the DMV, not in a public assistance
agency. An inaccurate list will increase the cost of mailings.
About 75 percent of all transactions are change of address
transactions, which are critical to keeping the lists accurate.
When the lists are not accurate, you end up with increased
provisional ballots. Provisional ballots mean you have longer
wait times, some voters have a bad election day experience,
there is extra work. Our neighbors to the south of us, Ohio,
had over 200,000 provisional ballots. In Michigan, we had 2,600
provisional ballots. Only 14 percent of Ohio's voter
registration transactions come from the DMV. I will note they
have made some efforts since 2012 to improve that. A good DMV
would eliminate most of those provisional ballots.
And it is important to remember that every voter
registration application that comes through a DMV is from a
person who has had a face-to-face transaction at some point,
who has had their identity and their legal presence verified.
So, that also increases the integrity of the voter file.
The Commission highlighted Delaware because the state was
able to design a system that did not integrate voter
registration data with the DMV, which is a costly and lengthy
process. Their e-Signature interface basically sends the driver
license data directly to the voter registration system. They
have created a lower cost solution without integrating their
voter registration data into the DMV, which can be much more
quickly accomplished.
Twenty States, the Commission has noted, have also gone to
online voter registration, and these systems at some point,
will become portals for DMVs that are not in compliance.
In conclusion, I would say that a better Motor/Voter
performance through full compliance will substantially improve
the accuracy of voter registration files and improve the
election day experience of many voters. With lower-cost options
available, DMVs now have a clearer, less expensive path to
fulfill the letter and the spirit of the NVRA.
Thank you very much.
[The prepared statement of Mr. Thomas was submitted for the
record:]
Senator Walsh. Thank you, Mr. Thomas, and thank you to all
of our individuals for speaking today.
We are going to open it up for questions now, and my first
question is for Ms. Manlove. I have two quick questions. First
is, in discussing this e-Signature program with election
officials from other States, have you heard any good reasons
that this would not work in other States? And, second, because
Delaware is also an ERIC State, I wanted to give you a minute
to discuss your experience participating in that program, as
well.
Ms. Manlove. Now, I have met with other States. We have had
several States come to Delaware. And if I have been in a
conference in their State, I have gone to meet their DMV. I
have not had a reason why this would not work. It is such a
simple solution, I am actually always surprised that we get so
much good press out of it. For us, it was just a way to solve
the problem at the end of the day.
And ERIC has been wonderful for us, and it has even shown
our in-State--I think all the States show that. But, even our
in-State addresses are not always as accurate as we would like,
and we have a great DMV process. We have removed voters who are
deceased that were deceased in the State, and we went back and
checked with our Vital Statistics and found out it was a time
when they were having some change-over and we did not get good
records. So, we have cleaned up a lot of our records. We mailed
out, I think, 26,500 postcards to eligible but unregistered
voters and about 4,000 of those registered to vote before
election day.
Senator Walsh. Thank you.
Next is for Mr. Lindback. I want to ask you how ERIC
protects privacy of voters. Montanans value their privacy, and
you mentioned the privacy protocols that govern the ERIC
program. Can you elaborate on how ERIC protects the privacy of
voters?
Mr. Lindback. Absolutely. Thank you, Mr. Chairman. ERIC
uses a technique called anonymization to anonymize data that
would be considered confidential within an ERIC State. So, they
can--and in virtually all of the States, that would include
data such as date of birth or the last four digits of their
Social Security number.
The anonymization process is also called one-way hashing,
and this is done to the data before it leaves State control.
And so the States are issued the anonymization program by ERIC.
They run their date of birth information and the last four
digits of the Social Security number, as examples, through the
anonymizer. It translates that into an indecipherable string
of, like, 40 letters and numbers. Then when that data reaches
ERIC, it is anonymized a second time. It is run through the
data matching process, and so ERIC is matching anonymized data
against anonymized data from other States.
When the States receive their reports back, they are told,
for example, that the date of birth matches in the other State,
but they are not told what the date of birth actually is
because that data has been anonymized. They do not need to know
that. They only need to know it is a match.
And so that data is anonymized before it leaves State
control. The data center itself, of course, follows all the
security protocols.
When ERIC was created, we ran the plan through the Center
for Democracy and Technology, one of the leading privacy and
advocacy organizations in the United States. They were
impressed with the plan. They issued a report that is on the
ERIC Web site issuing recommendations on how ERIC should
minimize risk to security and privacy, and ERIC is following
each of those recommendations. So, I think it is fair to say
that we are doing everything possible to minimize risk of
disclosure of that data.
Senator Walsh. Thank you very much.
I would now like to open it to the Ranking Member, Mr.
Roberts, to ask any questions that you may have. Senator
Roberts.
Senator Roberts. Well, thank you, Mr. Chairman.
Ms. Manlove, your statement references your use of the Help
America Vote Act, i.e., Federal money, to build your system,
and you also talk about the savings that it has generated. I
think I read your statement to the effect that $600,000 enabled
you to get up and running----
Ms. Manlove. Yes.
Senator Roberts [continuing]. And that you were able to
achieve $200,000 savings. Within your oral statement, you
indicated that came from letting five people go. Is that
correct?
Ms. Manlove. We did not let five people go. We had vacant
positions----
Senator Roberts. Oh, I see.
Ms. Manlove. At that point in time, there was a hiring
freeze in the State----
Senator Roberts. I cannot imagine anybody in government
letting anybody go.
Ms. Manlove. No. We did not let anyone go.
Senator Roberts. All right. But, do we need Federal
incentives to get States to adopt reforms that will save them
money? I think it is obvious. I mean, you have stated it very
clearly that once you explain it to States--I guess my question
is, why do we need the Federal start-up money when States know
they are going to save themselves money?
Ms. Manlove. I do not know. We would not have been able to
do it without the HAVA money. It just was a project that was,
in scope for Delaware, too big at that point in time.
Senator Roberts. Right.
Ms. Manlove. We really did not look at it as a money saving
process. We looked at it--it started as just a way to get
everything. We were----
Senator Roberts. But now, you are----
Ms. Manlove. In hindsight, yes, we did save funds.
Senator Roberts. Yes. All right. Okay. You are the proof of
the pudding. In other words, you did not know you could have
the pudding until you made it, and then after you made it, you
saved money. And so I guess my message to other States is that
you do not have to ask us, and we have very limited help
because of the budget and all of that.
Are other States starting to realize they can quickly
recoup any initial cost by the savings when you talk with them?
Ms. Manlove. Well, I explain that with every presentation I
give. I use practically the same presentation every time I talk
about e-Signature. But, we have continued on using our HAVA
funds to do other projects that otherwise would not have been
able to happen.
Senator Roberts. Pardon my lack of experience here, but how
do you use the e-Signature? Is it compared to anything, or is
it just e-Signature?
Ms. Manlove. Well, it comes to us in real time, was the
biggest issue. What was happening with the paper process is, we
just were not getting the actual application and we needed that
signature to process the voter registration application. So
now, rather than picking up paper and physically bringing the
paper, everything comes to us electronically in real time. So,
none of the issues of losing applications happen.
Senator Roberts. I understand that, but is it legible? I
mean----
Ms. Manlove. Oh, yes, it is.
Senator Roberts. It is legible?
Ms. Manlove. Yes.
Senator Roberts. So, it is not like my signature when I am
trying to sign on a credit card screen----
Ms. Manlove. It is the same credit card screen, but it is--
--
Senator Roberts [continuing]. It looks like some child who
is three years old.
Ms. Manlove. I think it is pretty stable, and because
everyone at DMV is signing on that, so they are secured to the
countertop, and we are getting really pretty good signatures.
Senator Roberts. Is it compared to a signature on paper?
Ms. Manlove. No, because in a lot of cases, we do not have
another signature. That is the only signature we have.
Senator Roberts. No, I mean just in terms of legibility.
You think it is roughly the same?
Ms. Manlove. Yes.
Senator Roberts. I see. Thank you.
Mr. Lindback, you mentioned the National Voter Registration
Act, or motor voter requirements for the removal of
registrants. My question is, how do States participating in
your program that receive death notices remove voters? Is that
immediately or after going through the NVRA process? And, I
would add, it is my understanding that that process requires
the voter be mailed a notice. They are only removed if they do
not respond to the notice and then fail to vote in two
subsequent Federal general elections, is that correct?
Mr. Lindback. Thank you, Mr. Chairman. I think there may be
a difference between--maybe my other panel members can confirm
for me, but I think there may be a difference between what the
NVRA requires for confirmation of death notices and
confirmation of voters who have moved. But, there are processes
in place by the NVRA. There is nothing about membership in ERIC
that changes any of those requirements. The only thing that
changes for the States is that they are getting information
about voters who have moved and voters who have died sooner
than they otherwise would receive it.
Senator Roberts. Okay. That is what I was trying to get at.
My next question was, and you have just answered it, does ERIC
speed up that process?
Mr. Lindback. Yes.
Senator Roberts. And that answer is yes.
Mr. Lindback, Mr. Thomas mentioned a House bill to require
States to remove registrants who have moved to another State
and declared that State as their voting residence. How do
States in the ERIC program remove voters when they receive a
change of address notification? Do they still go through the
NVRA process or are they removed immediately?
Mr. Lindback. Thank you, Mr. Chairman. The States go
through the NVRA process, and the bylaws are specific that the
NVRA mandated mailings must be followed by the States.
Senator Roberts. Mr. Chairman, my time has expired. I would
like to ask permission for another, oh, two minutes so I may
conclude.
Senator Walsh. Permission granted.
Senator Roberts. Thank you, Mr. Chairman.
Last week, there was an ABC report about a couple in
California that received a registration application with their
party affiliation premarked. They were already registered
Republicans, but they were mailed a registration application
with the Democrat box premarked. They received an application
because they had signed up for health care through an Obamacare
exchange run by the State of California.
Apparently, some groups have been arguing that the States
are obligated to offer registration services through the
Obamacare exchange and then find out that their party
affiliation has already been premarked. Just a question for the
panel. What is your view of that and how is your State handling
this issue, or are you even aware of it?
Mr. Choate. So, the State of Colorado has determined, based
on our interpretation of both State and Federal law, that our
exchange is not obligated to give the opportunity to register
to vote because our exchange is not technically operated by the
State of Colorado. However, under the NVRA, if the exchange or
health care provider, the provider of that service, is operated
by the State, then I think under the NVRA, they would have to
provide an opportunity to register.
Senator Roberts. So, you have both the DMV and the State
exchange operating together?
Mr. Choate. So, the DMV has to do it. That is one section
of the NVRA. But then, also, the agencies that provide social
services have to provide an opportunity to register to vote, as
well, under a different section.
Senator Roberts. Where you get hunting licenses, is that
also----
Mr. Choate. That would not be a social service that would
be covered by the NVRA.
Senator Roberts. I was part of that voting determination in
the House 23 years ago. I am not going to go into that, but at
any rate----
Well, I think it was you, Mr. Choate, that said that there
were 15 votes that were double-counted in Kansas and Colorado.
Mr. Choate. Yes. So, Kansas----
Senator Roberts. Do you realize you just cost me 15 votes
during that check?
[Laughter.]
Mr. Choate. Well, they were not all in Kansas, but some of
them were in Kansas. I think----
Senator Roberts. Do you know how hard it is to find the
State line in Western Kansas and Eastern Colorado?
[Laughter.]
Mr. Choate. I do, actually. I am from Hays, so that is--I
am a little familiar with Kansas.
Senator Roberts. Hays City, America?
Mr. Choate. I am from Hays City, America. That is right.
Senator Roberts. How about that. Have you climbed Mount
Sunflower?
Mr. Choate. I have climbed Mount Sunflower. I am one of the
many.
[Laughter.]
Senator Roberts. Yes. The trick is not to climb it. The
trick is to find it.
Mr. Choate. Exactly.
[Laughter.]
Mr. Choate. Well, there is a big post there identifying it.
Senator Roberts. I know that, but you drive to Colorado
first and then somebody tells you, whoops, you are in Colorado.
Go back.
Mr. Choate. That is usually the way it works.
Senator Roberts. I have a feeling that is where those 15
votes came from.
[Laughter.]
Mr. Choate. That is certainly possible.
Senator Roberts. All right. I have obviously overstayed my
time, Mr. Chairman. Thank you all. Thanks to the panel.
Senator Walsh. Thank you, Senator Roberts.
Dr. Choate, as an election administrator from a State that
participates in both the ERIC program and the Interstate Voter
Registration Cross-Check program, can you highlight the
differences between the two, focusing on costs and potential
savings?
Mr. Choate. I would be happy to. So, the Kansas Cross-
Check, which is the second of the two that you just described,
and ERIC are actually very different programs that sort of get
you to a similar spot. So, the way that the Kansas project
works is that 28 States send their data after a major election,
after a Presidential election, to Kansas. Then Kansas checks
all of those, compares all of those to identify who may be on
multiple lists, so, whether a voter is potentially listed as a
registrant on a list in, say, Colorado or in Kansas. Then we,
as a staff, then go through that and figure out if that data
was correct and if those voters voted, and then drill down to
whether, in fact, we have people who have voted across State
lines. That is a pretty labor intensive process, so the cross-
check requires quite a bit of labor on the back end.
ERIC, by contrast, does not actually involve all that much
work on the back end. It is much more labor intensive on the
front end. So, once you have collected the data and sent that
data to ERIC, ERIC gives you a report and you then distribute
that report to your jurisdictions. So, in our case, that would
be the counties, and the counties use that information to
process their voters. So, it is actually very seamless.
Kansas is much more labor intensive. So, one costs money,
so ERIC costs money to be in, to be a member, but you save
money because you are not using that for personnel costs that
you would have to use for the Kansas project. So, they both
have expenses. They both have time obligations. But, the ERIC
one is much more front-loaded and Kansas is sort of on the back
end.
And in our particular circumstance, we use ERIC for a much
broader kind of analysis. So, we use ERIC to analyze who our
voters are and to help clean the data and to identify potential
new voters. We only use the Kansas project to identify people
who have potentially double-voted.
Senator Walsh. Thank you very much.
On behalf of the Rules Committee, I would like to thank all
of our witnesses today for your important testimony and
appreciate the work that you have put into this project. This
concludes the panel for today's hearing.
Without objection, the hearing record will remain open for
five business days for additional statements and post-hearing
questions submitted in writing for our witnesses to answer.
Again, I want to thank my colleagues for participating in
this hearing and sharing their thoughts and comments on this
important topic.
This hearing is now adjourned.
[Whereupon, at 10:50 a.m., the committee proceeded to other
business.]
APPENDIX MATERIAL SUBMITTED
----------
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
BUSINESS MEETING--TO CONSIDER THE.
NOMINATIONS OF THOMAS HICKS.
AND MYRNA PEREZ TO BE MEMBERS.
OF THE ELECTION ASSISTANCE COMMISSION.
AND S. 1728, S. 1937, S. 1947, AND S. 2197
----------
WEDNESDAY, APRIL 9, 2014
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 10:50 a.m., in
Room SR-301, Russell Senate Office Building, Hon. John Walsh,
presiding.
Present: Senator Walsh.
Staff Present: Jean Bordewich, Staff Director; Stacy
Ettinger, Chief Counsel; Veronica Gillespie, Elections Counsel;
Abbie Sorrendino, Legislative Assistant; Phillip Rumsey,
Legislative Assistant; Jeff Johnson, Clerk; Benjamin Grazda,
Staff Assistant; Mary Suit Jones, Republican Staff Director;
Paul Vinovich, Republican Chief Counsel; Rachel Creviston,
Republican Senior Professional Staff; Trish Kent, Republican
Senior Professional Staff.
OPENING STATEMENT OF SENATOR WALSH
Senator Walsh. Now, I would like to gavel in for the
Executive Session. Good morning. The committee will now come to
order for the business meeting noticed for this morning.
Unfortunately, we do not have a quorum of ten members
present, and thus, we cannot proceed to vote on the two
nominations and four pieces of legislation on this announced
agenda for this business meeting.
Since a quorum is not present, the committee will recess,
subject to the call of the Chair, and take up these matters
when we obtain a quorum. The Chairman intends to convene
another meeting at 11:15 a.m. in Senate 219, Second Floor,
Capitol, immediately following the 11:00 a.m. roll call vote on
the floor.
The committee stands in recess until the call of the
Chairman.
[Whereupon, at 10:51 a.m., the committee was adjourned.]
The committee reconvened, at 11:19 a.m., April 9, 2014, in
Room S-219, United States Capitol Building, Hon. Charles E.
Schumer, chairman of the committee, presiding.
Present: Senators Schumer, Feinstein, Durbin, Pryor, Udall,
Warner, Leahy, King, Walsh, Roberts, Cochran.
Staff Present: Jean Bordewich, Staff Director; Stacy
Ettinger, Chief Counsel; Abbie Sorrendino, Legislative
Assistant; Phillip Rumsey, Legislative Assistant; Jeff Johnson,
Clerk; Benjamin Grazda, Staff Assistant; Mary Suit Jones,
Republican Staff Director; Shaun Parkin, Republican Deputy
Staff Director; Paul Vinovich, Republican Chief Counsel; Rachel
Creviston, Republican Senior Professional Staff.
OPENING STATEMENT OF CHAIRMAN SCHUMER
Chairman Schumer. Thank you all for coming. We now have a
quorum of 10 Members to continue our markup. We will consider
the two EAC nominations individually, followed by consideration
of four bills. As usual, we will make these voice votes.
However, if the Ranking member requests a recorded vote, I will
ask the clerk to call the roll. Is there any debate on the
nominations of Thomas Hicks and Myrna Perez to be Commissioners
of the EAC?
OPENING STATEMENT OF SENATOR ROBERTS
Senator Roberts. Mr. Chairman--as you know I have called
for the elimination of this agency as I believe it has outlived
its usefulness. I have also said, however, that if it is going
to exist it should be bi-partisan as the statute that created
it stated.
I cannot support moving these nominations forward without
any Republican nominees to join them. It is my understanding
the White House is currently in the process of reviewing
potential Republican nominees. Hopefully we will have those
nominations before the nominees we consider today reach the
Floor so they can all be considered together by the full
Senate.
I cannot, however, support moving these nominations without
Republican counterparts and accordingly will vote no. I am not
calling for a recorded vote.
Chairman Schumer. Thank you, Ranking Member Roberts. As
soon as we get republican nominations I give you my word, we
will move them expeditiously. The nominations just haven't been
submitted yet but I appreciate your comments.
Chairman Schumer. The question is on reporting the
nominations favorably to the Senate. Unless there is a request
for a roll call vote this will be a voice vote.
First, Mr. Thomas Hicks. Is there a second?
Senator Leahy. Second.
Chairman Schumer. All those in favor, say aye.
[Chorus of ayes.]
Chairman Schumer. All those opposed, say no.
[Nays.]
Chairman Schumer. The ayes have it. The nomination of
Thomas Hicks is ordered favorably reported to the Senate with
recommendation the nomination be confirmed.
Next up, Ms. Myrna Perez. Is there a second?
Senator Udall. Second.
Chairman Schumer. Is there a demand for a recorded vote?
[Pause.]
Chairman Schumer. Then let us have a voice vote.
All those in favor, say aye.
[Chorus of ayes.]
Chairman Schumer. All those opposed, say no.
[Nays.]
Chairman Schumer. The ayes have it. The nomination of Ms.
Myrna Perez is ordered favorably reported to the Senate with
recommendation the nominee be confirmed.
The next item for consideration is S. 1728 the SENTRI Act.
We have a pending amendment from Senator Roberts and a
Chairman's Mark.
Senator Roberts, would you like to offer your amendment for
consideration?
Senator Roberts. Mr. Chairman, I know ours staffs met and
agreed to some very good changes to this bill so I thank you
for including me, pardon me, for including those in your Mark.
I do have concerns about one remaining section of the bill
though and will offer an amendment to strike it. Specifically,
I seek to delete Section 101, which would require States and
every county official, and Aunt Mildred out in Hamilton County,
Kansas, to provide reports to the Department of Justice on the
status of their ballot transmissions. I understand the
Department of Justice has sought to impose a requirement of
this nature, but I cannot support it.
I fear this section will impose an onerous reporting
obligation on thousands of jurisdictions that are fully
compliant with the law. We do not need to require every
jurisdiction to compile these reports just to get at the few
that may be out of compliance.
As you know, election administrators operate under tight
timeframes with limited resources. Their time and resources
should be dedicated to serving our voting population, not to
filling out reports for the Department of Justice.
Furthermore, the timeframes in the bill are unrealistic.
The timeframes are likely to result in incomplete reports.
States are given a mere three days to produce these reports
which are immediately made public. When those reports do not
contain all of the required information, as they inevitably
will not with the limited time provided to gather the
information, the false impression will be created that
jurisdictions are failing to deliver ballots when in reality
they have failed only to report having done so.
If we want our election officials to serve military and
overseas voters, we should allow them to do it. If the choice
is between sending ballots to soldiers or reports to
Washington, I choose the former and I want election officials
to be able to do the same.
I therefore offer this amendment to strike Section 101 and
would ask for a recorded vote and urge Members to vote in favor
of it.
Chairman Schumer. I recommend a vote against this
amendment. The reporting provisions strengthen protection of
voting rights of military voters by providing the Department of
Defense and the Department of Justice with critical information
on whether absentee ballots were timely transmitted to our
service men and women.
The question is on the adoption of the amendment. And now
we will ask the Clerk to call the roll.
The Clerk. Ms. Feinstein.
Senator Feinstein. No.
The Clerk. Mr. Durbin.
Senator Durbin. No.
The Clerk. Mr. Pryor.
Senator Pryor. No.
The Clerk. Mr. Udall.
Senator Udall. No.
The Clerk. Mr. Warner.
Senator Warner. No.
The Clerk. Mr. Leahy.
Senator Leahy. No.
The Clerk. Ms. Klobuchar.
[Pause.]
The Clerk. Mr. King.
Senator King. Aye.
The Clerk. Mr. Walsh.
Senator Walsh. No.
The Clerk. Mr. Roberts.
Senator Roberts. Aye.
The Clerk. Mr. McConnell.
Senator McConnell. [No response.]
The Clerk. Mr. Cochran.
Senator Cochran. Aye.
The Clerk. Mr. Chambliss.
Senator Chambliss. [Aye by proxy.]
The Clerk. Mr. Alexander.
Senator Alexander. [No response.]
The Clerk. Mr. Shelby.
Senator Shelby. [No response.]
The Clerk. Mr. Blunt.
Senator Blunt. [No response.]
The Clerk. Mr. Cruz.
Senator Cruz. [No response.]
The Clerk. Chairman Schumer.
Chairman Schumer. No.
The Clerk. On this vote, the ayes are three (3). The nays
are eight (8). The Amendment is not agreed to.
Chairman Schumer. Thank you. The no's have it, the
amendment is not adopted.
Chairman Schumer. Next up is the Chairman's Mark. The
question is on reporting the Chairman's mark--an amendment in
the nature of a substitute--favorably to the Senate. Unless
there is a request for a roll call vote, this will be a voice
vote. Is there any further debate on the mark?
Senator Roberts. Thank you, Mr. Chairman for allowing a
vote on my amendment.
In spite of my concerns about that section, which I may
bring to the Floor, I believe on balance the bill is worth
supporting and I will do so. I hope this legislation will
improve the voting experience for our military and overseas
voters, and am pleased to vote in favor of reporting it.
Chairman Schumer. Any request for a recorded vote?
[Pause.]
Chairman Schumer. All those in favor, say aye.
[Chorus of ayes.]
Chairman Schumer. All those opposed, say nay.
[Pause.]
Chairman Schumer. The ayes have it. The bill is reported to
the Senate.
Chairman Schumer. The next item for consideration is S.
1937--The Elections Preparedness Requires Early Planning Act,
known as the Elections PREP Act.
The question is on reporting the bill favorably to the
Senate. Unless there is a request for a roll call vote, there
will be a voice vote. Is there any further debate?
Senator Roberts. Mr. Chairman, I oppose this legislation
and intend to vote no. The states are perfectly capable of
developing disaster contingency plans without federal
compulsion or assistance. The National Association of
Secretaries of State just convened a task force to study this
subject and issued a report with recommendations for how to
deal with it. That report is available to states to formulate
their contingency plans and federal legislation is not required
to affect the goals of this legislation. Accordingly, I will
vote no. I am not requesting a recorded vote.
Chairman Schumer. Any other debate? All in favor, say aye.
[Chorus of ayes.]
Chairman Schumer. All those opposed, say nay.
[Nays.]
Chairman Schumer. The ayes have it. The bill is ordered
reported to the Senate.
Chairman Schumer. The next item for consideration is S.
1947--The Government Publishing Office Act of 2014. Is there
any debate?
Senator Roberts. Mr. Chairman, I support this legislation
to more accurately reflect the modern mission and structure of
the Government Printing Office and ask other Committee Members
to do the same. We are changing printing to publishing. I guess
it is all in the name. There is nothing in here about carbon
paper.
Chairman Schumer. Is there any further debate? I think that
settles it. Anyone want a recorded vote, if not we will do a
voice vote.
Chairman Schumer. All in favor, say aye.
[Chorus of ayes.]
Chairman Schumer. All those opposed, say nay.
[Pause.]
Chairman Schumer. The ayes have it. The bill is reported to
the Senate.
Chairman Schumer. The final item for consideration is S.
2197--The Senate Stationery Bill. This question is on reporting
the bill favorably to the Senate. Is there any debate?
Senator Roberts. Mr. Chairman, I am a co-sponsor of this
bill and ask the other Members to support it. It eliminates an
archaic requirement and will help the Senate procure the best
products at the lowest cost. I will vote aye and I ask other
Members to do the same.
Chairman Schumer. Any further debate? Any request for a
recorded vote? We will do a voice vote.
Chairman Schumer. All in favor, say aye.
[Chorus of ayes.]
Chairman Schumer. All those opposed, say nay.
[Pause.]
Chairman Schumer. The ayes have it. The bill is reported to
the Senate. And I want to thank everyone for coming, I know you
had busy schedules. We got a lot done. This was a record day
for the Rules Committee. Senator Roberts, do you have any
further remarks you might wish to make?
Senator Roberts. No, sir.
Chairman Schumer. Then the meeting is adjourned.
[Whereupon, at 11:29 a.m., the Committee was adjourned.]
HEARING--DOLLARS AND SENSE:.
HOW UNDISCLOSED MONEY.
AND POST-McCUTCHEON CAMPAIGN.
FINANCE WILL AFFECT THE 2014 ELECTION AND BEYOND
----------
WEDNESDAY, APRIL 30, 2014
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The Committee met, pursuant to notice, at 3:15 p.m., in
Room SH-216, Hart Senate Office Building, Hon. Angus S. King,
Jr. presiding.
Present: Senators Schumer, Udall, Klobuchar, King, Walsh,
Roberts, and Cruz.
Staff Present: Jean Bordewich, Staff Director; Kelly Fado,
Deputy Staff Director; Stacy Ettinger, Chief Counsel; Veronica
Gillespie, Elections Counsel; Ben Hovland, Senior Counsel;
Julia Richardson, Senior Counsel; Abbie Sorrendino, Legislative
Assistant; Philip Rumsey, Legislative Correspondent; Jeff
Johnson, Clerk; Matthew McGowan, Professional Staff; Benjamin
Grazda, Staff Assistant; Mary Suit Jones, Republican Staff
Director; Shaun Parkin, Republican Deputy Staff Director; Paul
Vinovich, Republican Chief Counsel; Sarah Little, Republican
Communications Director; Trish Kent, Republican Senior
Professional Staff; and Rachel Creviston, Republican Senior
Professional Staff.
OPENING STATEMENT OF SENATOR KING
Senator King. The Rules Committee will come to order. Good
morning, everyone. The format that we are going to follow for
the next few minutes will be that I will deliver an opening
statement, then followed by Ranking Member Senator Roberts, and
Chairman Schumer, and then we will hear from Justice Stevens,
and following his testimony, we will have the panel, and if
other Senators join us during the course, they will deliver
their opening statements after Justice Stevens joins us.
I am deeply worried about the future of our democracy. For
over 100 years, we have struggled with the issue of money and
politics, always seeking to find the right balance between
freedom of political expression and the corrosive influence of
the unchecked flow of money to public officials.
We have had periodic scandals and periodic corrections. We
have had new laws and new ways to evade those laws. But we have
never before seen what is happening today. As we will learn
this morning, a perfect storm of new forces--court opinions,
clever political operatives, and the high stakes inherent in
governmental decisions--have created a qualitatively new
political landscape where candidates are compelled to raise
more and more money, and yet, at the same time, have to contend
with virtually unlimited spending by shadowy entities
representing nameless donors.
What has occurred in the past five years represents
revolutionary, not evolutionary, change in the way campaigns
are financed in America. These are changes I view as a threat
to undermine the fundamental principle of American democracy--
one person, one vote. There are well-intentioned people, people
who I respect, who believe that restrictions on who can give to
campaigns and how much they can give trespass on cherished
First Amendment freedom of speech protections.
Others, and I am among them, are worried that the recent
decision's elimination of even modest limits on campaign
contributions, combined with a Byzantine system that, in too
many cases, masks disclosure of who is giving and allows a
flood of so-called dark money into the process, has the very
real potential to corrode the integrity of the system itself.
Historically, the flow of money has rested in and out of
political campaigns on three pillars: Regulation of sources,
regulation of amounts, and disclosure. Recent decisions have
severely restricted our ability to control sources and amounts.
But in those decisions--and I am referring, of course, to
Citizens United and McCutcheon, the Court has explicitly
invited Congress to utilize disclosure as the protection of the
public interest in these situations.
Justice Kennedy and Justice Roberts, in their opinions,
cite disclosure as the reason that the limitations do not have
to be upheld. Unfortunately, the disclosure requirements that
they mention in those opinions as the bulwark against abuse and
corruption simply do not exist.
For example, according to a new study by the Center for
Responsive Politics, total individual expenditures reported to
the FEC by outside groups totals about $70 million to this
point in 2014, nearly three times more than was spent at this
point in 2010. That is the point I want to emphasize, is that
this is not a gradual growth of a change of a few dollars here
and there. What we have is an explosion of this kind of money,
not only of outside expenditures, but also of expenditures
where we do not know the source.
We have created a kind of parallel universe of campaign
finance, the traditional candidate-based system with clear
limits on sources and amounts and strict disclosure
requirements and the independent system with no control of
sources, no limits, and no disclosure.
Naturally, this troubling new world of campaign finance
impacts how we as elected officials interact with the fund-
raising process, quantitatively, in the amounts of money that
elected officials need to be made. An average U.S. Senator--and
of course, all Senators are above-average--but an average U.S.
Senator running for reelection has to raise something on the
order of $5,000 to $8,000 a day every day, 365 days a year for
six years in order to accumulate the funds necessary to run for
reelection. And I can tell you, at the rate of $5,000 to $6,000
a day, you very quickly run out of friends and family.
My concern here is the system. This is not a Democratic or
a Republican issue, and the country does not benefit from an
undisclosed contribution and an arm's race in contributions.
Disclosure in this context is not an infringement on the First
Amendment. But what we are allowing to happen before our eyes
is already having its inevitable effect, the erosion of
confidence in our system and in us as stewards of our country's
future.
The challenge here, the challenge before us is to find the
balance between competing goods, the freedom to exercise our
political voice on the one hand, and the public's interest in
safeguarding the integrity of the political process on the
other, to restore that balance in what feels like an
increasingly unbalanced system.
I welcome our witnesses today and look forward to their
contributions to these important deliberations. Senator
Roberts.
OPENING STATEMENT OF SENATOR ROBERTS
Senator Roberts. Well, thank you, Mr. Chairman. I am
pleased to be here today on this very important subject, and I
brought my own chart. We in the minority do not have enough
money for another display unit over there, so I would ask
unanimous consent. We could put our chart up where you had your
chart.
Senator King. Without objection.
Senator Roberts. The chart bears the text of the First
Amendment to the Constitution of the United States. And I
believe that is what we are talking about today, the rights of
citizens to express themselves, to make their views known on
the issues that affect their daily lives and pocketbooks, or
any other issue they wish to discuss.
The First Amendment protects those rights and it prevents
the Government from restricting them. The exercise of those
rights does not threaten our democracy. It is the attempt to
restrict these rights that we must fear. We are living today
with the consequences of the failed attempt to restrict them.
This failure was not hard to perceive. It is not the fault of
the courts or the Federal Election Commission.
It is the direct consequence of the poor decision Congress
made when it passed the McCain-Feingold bill. I opposed that
bill. I and others who voted against it did so because we knew
it would restrict people's right to participate in the
political process. It would not get money out of the system,
but would simply divert it to other avenues.
Supporters of the bill, of course, denied it. They assured
us it would not happen, that our system would be better. It
should be clear now who was right and who was wrong. But rather
than admit they were wrong, the proponents of speech regulation
have just proposed new regulations. Because the courts have
properly found much of their last efforts to be
unconstitutional, they have proposed new regulatory schemes
under the guise of disclosure.
No longer able to simply prohibit speech they do not like,
they seek to prevent it by imposing onerous disclosure
requirements on those who wish to speak. Now, respectfully, Mr.
Chairman, as we consider suggestions for ways to improve the
system, the last people we should be asking for advice at this
hearing are those who helped write the law that created the
problem in the first place.
Let us stop this fool's errand of speech regulation. Let us
stop trying to prevent people from criticizing us. Let us stop
demonizing citizens who exercise their First Amendment rights.
Let us stop pretending more speech somehow threatens our
democracy. We have nothing to fear from a free marketplace of
ideas. We do, however, need to fear a Government empowered to
investigate its own citizens for exercising their rights. The
revelations of the Internal Revenue Service targeting of
conservative groups and others have shown this to be a real
danger.
We hear a lot about corruption when this issue is debated.
I think for many people that the definition of corruption is
the promotion of ideas with which they disagree. It is amazing
how for years George Soros has been spending millions of
dollars to promote liberal and progressive causes. None of my
friends on the other side of the aisle seem to be concerned
about it.
Now that the Koch family is spending money to promote free
markets and private enterprise, we are supposed to believe that
our democracy is at risk. That is absurd. Corporate spending is
supposed to be a concern, but corporations have long exercised
unfettered rights to express themselves, provided they were
media corporations.
I am pleased to say that the Citizens United case changed
that. The Supreme Court recognized the First Amendment does not
allow this Congress to choose who gets to speak and properly
ended this nonsensical distinction with the only consequence
being that now more voices are heard. And I know, I know, there
are some in this body who do not want those voices to be heard
and they are doing everything they can to silence them.
Our majority leader, unfortunate, who has a fixation with
the Koch family that can only be described as bizarre, takes to
the floor on an almost daily basis to attack them. Why? I think
it is because he fears they pose a threat to his hold on power,
or the majority. He wants them to stop talking. Well, that is
why the First Amendment begins, Congress shall make no law. The
First Amendment does not allow us to silence those who oppose
us. That applies to corporations, labor unions, Mr. Soros, and
the Koch family. It applies to everyone.
Let us stop trying to do so, Mr. Chairman. Let us stop
trying to impose regulations designed to deter and harass our
opponents. Instead, let us just admit the mistake we made when
we tried to regulate political speech in the first place. Let
us remove those restrictions. Let us allow those who want to
contribute and engage in our political system to give money
where they want as long as they follow the law.
Everyone in this country has the right to express
themselves, Mr. Chairman, even people who do not manage to get
themselves invited to appear on television shows or to testify
at Senate hearings. People, all people, individually and as
groups, have every right to make their views known. Instead of
trying to stop them, let us reinvigorate our system.
New restrictions and regulations are not going to improve
the system. Getting rid of those we already have imposed will.
That is the course we should take, Mr. Chairman. Simply, let us
just do it. Thank you for your time.
Senator King. Senator Schumer.
OPENING STATEMENT OF CHAIRMAN SCHUMER
Chairman Schumer. Thank you. First, let me thank you,
Senator King, for suggesting this hearing and for your chairing
the hearing, as well as your invitation to Justice Stevens, who
I look forward to hearing from.
Well, I think McCutcheon is a real turning point in our
debate about money in politics. McCutcheon seemed to say that
free speech absolutely defined, as McCutcheon does, allows
anyone to spend any amount of money in any way in our political
system. McCutcheon, carried to its logical extreme, will get
rid of individual limits, will get rid of limits on
corporations, will just allow money to totally, totally
envelope our system.
It is frightening. It is frightening. And the reason we
have this hearing is not because of some new ads--Koch Brothers
have been doing ads for years and years--but because of the
McCutcheon decision and its implications for our democracy. The
bottom line is very simple. I respect my colleagues' fidelity
to the First Amendment, but no amendment is absolute.
Most of my colleagues on the other side of the aisle
support anti-pornography legislation. That is a limitation on
the First Amendment. Most everyone here believes you cannot
falsely scream fire in a crowded theater. That is a limitation
on the First Amendment. We have many, many, many different laws
that pose limits on the amendments because through 200-and-
some-odd years of jurisprudence, the Founding Fathers and the
Supreme Court have realized that no amendment, no amendment is
absolute.
We have noise ordinances. Everyone accepts them. That is a
limitation on the First Amendment. So if you impose a view that
just when it comes to allowing one person to put the 7,112th ad
on television that the First Amendment is absolute, but in so
many other areas it is not, you have to ask why. You have to
ask why.
And then, when many on the other side of the aisle do not
support disclosure, which is actually an enhancement of the
First Amendment, free debate, free knowledge, one wonders why.
One wonders why. The First Amendment protection of free speech
is part of what makes America great. So is the concept of one
person, one vote. And when a small group of people, 700 in this
case, who were affected by McCutcheon, have so much more power
to influence the political process than everybody else, our
democracy is at risk. That is the problem here.
There is a balancing test and there are many concepts in
the Constitution, the concept of having a somewhat level
playing field so that those who have overwhelming wealth and
choose to spend it, whether they be on the left or the right,
the laws we are proposing affect the Koch Brothers and George
Soros, and should.
And so, because now legislation could bring disclosure, but
could now will not stop the path McCutcheon is on, Senate
Democrats are going to vote this year on my colleague, Tom
Udall's constitutional amendment which once and for all would
allow Congress to make laws to deal with the balance between
equality, each vote is equal, each person is equal, and the
First Amendment, a careful balance.
But not what the five members of the Supreme Court have
said, no balance. We will bring that amendment to the floor
shortly, and we will vote on it, and I will be working with
Senator Udall and Majority Leader Reid, and hopefully every
Republican who cares about honest elections, to bring it to the
floor this year.
When the Supreme Court, or any of my colleagues, say that
the Koch Brothers' First Amendment rights are being deprived,
that they are not being heard, it defies common sense, it
defies logic. And the same would apply to some very liberal
person who put on 10,000 ads. The ability to be heard is
different than the ability to drown out every other point of
view using modern technology simply because you have a lot more
money than somebody else who has an equally valid view.
So I hope that Senator Udall's amendment will track
bipartisan support, but it will draw to a fine point where we
are at, and that is that the First Amendment is sacred, but
that the First Amendment is not absolute. And by making it
absolute, you actually make it less sacred to most Americans.
We have to bring some balance to our political system. If
people lose faith in this system, which they are rapidly doing,
in large part, because they feel, correctly, that people with a
lot of money have far more say in the actual political dialogue
than they do, this great democracy could falter. We do not want
it to happen. And the best way to stop it is to show the
Supreme Court or limit the Supreme Court, show them that their
absolutist view is wrong and support and amendment like Senator
Udall's. Thank you, Mr. Chairman.
Senator King. For the information of Senator Cruz, Senator
Walsh, and Senator Udall who arrived after my introduction, the
schedule we are going to follow is I am now going to invite
Justice Stevens to speak, and then each of you will be asked to
provide a statement, if you wish to do so. Justice Stevens, if
you would join us at the table?
Justice John Paul Stevens is a retired Justice of the
United States Supreme Court, was appointed to the Court in 1975
by President Gerald Ford, I think the third longest sitting
Justice of the Supreme Court. Justice Stevens, I knew that you
were a distinguished jurist, but my eye was caught by a
headline in the paper over the weekend that says, Pope to Move
John Paul for Sainthood. I realized later it was not the same
John Paul.
In any case, we are delighted to have you here today. Thank
you very much for joining us, Justice.
STATEMENT OF THE HONORABLE JOHN PAUL STEVENS, ASSOCIATE JUSTICE
(RET.), UNITED STATES SUPREME COURT, WASHINGTON, D.C.
Justice Stevens. Thank you very much, Senator. Senator
King, Chairman Schumer, Ranking Member Roberts, and
distinguished members of this Committee, I thank you for the
opportunity to appear before you today to discuss the important
issue of campaign finance.
When I last appeared before this body in December of 1975,
my confirmation hearing stretched over three days. Today, I
shall spend only a few minutes making five brief points. First,
campaign finance is not a partisan issue. For years, the
Court's campaign finance jurisprudence has been incorrectly
predicated on the assumption that avoiding corruption or the
appearance of corruption is the only justification for
regulating campaign speech and the financing of political
campaigns.
That is quite wrong. We can safely assume that all of our
elected representatives and candidates for office are law-
abiding citizens, and the laws against bribery provide an
adequate protection against misconduct in office. It is
fundamentally wrong to assume that preventing corruption is the
only justification for laws limiting the First Amendment rights
of candidates and their supporters.
Elections are contests between rival candidates for public
office. Like rules that govern athletic contests or adversary
litigation, those rules should create a level playing field.
The interest in creating a level playing field justifies
regulation of campaign speech that does not apply to speech
about general issues that is not designed to affect the outcome
of elections.
The rules should give rival candidates, irrespective of
their party and incumbency status, an equal opportunity to
persuade citizens to vote for them. Just as procedures in
contested litigation regulates speech in order to give
adversary parties a fair and equal opportunity to persuade the
decision-maker to rule in their favors, rules regulating
political campaigns should have the same objective.
In elections, the decision-makers are voters, not judges or
jurors, but that does not change the imperative for the
equality of opportunity.
Second, all elected officials would lead happier lives and
be better able to perform their public responsibilities if they
did not have to spend so much time raising money.
Third, rules limiting campaign contributions and
expenditures should recognize the distinction between money
provided by their constituents and money provided by non-
voters, such as corporations and people living in other
jurisdictions. An important recent opinion written by Judge
Brett Kavanaugh of the D.C. Circuit, and summarily affirmed by
the Supreme Court, Blumen against the Federal Election
Commission, upheld the constitutionality of the Federal statute
that prohibits foreign citizens from spending money to support
or oppose candidates for Federal office.
While the Federal interest in preventing foreigners from
taking part in elections in this country justified the
financial regulation, it placed no limit on Canadians' freedom
to speak about issues of general interest. During World War II,
the reasoning behind the statute would have prohibited Japanese
agents from spending money opposing the reelection of FDR, but
would not have limited their ability to broadcast propaganda to
our troops.
Similar reasoning would have justified the State of
Michigan placing restrictions on campaign expenditures made by
residents of Wisconsin or Indiana without curtailing their
speech about general issues. Voters' fundamental right to
participate in electing their own political leaders is far more
compelling than the right of non-voters such as corporations
and non-residents to support or oppose candidates for public
office.
The Blumen case illustrates that the interest in protecting
campaign speech by non-voters is less worthy of protection than
the interest in protecting speech about general issues.
Fourth, while money is used to finance speech, money is not
speech. Speech is only one of the activities that are financed
by campaign contributions and expenditures. Those financial
activities should not receive precisely the same constitutional
protection as speech itself. After all, campaign funds were
used to finance the Watergate burglaries, actions that clearly
were not protected by the First Amendment.
Fifth, and this perhaps is the most important thing I want
to say, is the central error in the Court's campaign finance
jurisprudence is the holding in the 1976 case of Buckley
against Valeo that denies Congress the power to impose
limitations on campaign expenditures. My friend, Justice Byron
White, was the only member of the Court to dissent from that
holding.
As an athlete and as a participant in Jack Kennedy's
campaign for the Presidency, he was familiar with the
importance of rules requiring a level playing field. I did not
arrive at the Court in time to participate in the decision of
the Buckley case, but I have always thought that Byron got it
right.
After the decision was announced, Judge Skelly Wright, who
was one of the Federal judiciary's most ardent supporter of a
broad interpretation of the First Amendment, characterized its
ruling on campaign expenditures as, quote, tragically
misguided, unquote. Because that erroneous holding has been
consistently followed ever since 1976, we need an amendment to
the Constitution to correct that fundamental error.
I favor the adoption of this simple amendment, quote,
Neither the First Amendment nor any provision of this
Constitution shall be construed to prohibit the Congress or any
state from imposing reasonable limits on the amount of money
that candidates for public office or their supporters may spend
in election campaigns, unquote.
I think it wise to include the reasonable, the word
reasonable, to ensure that legislatures do not proscribe limits
that are so low that incumbents have an unfair advantage or
that interfere with the freedom of the press. I have confidence
that my former colleagues would not use that word to justify a
continuation of the practice of treating any limitation as
unreasonable.
Unlimited campaign expenditures impair the process of
democratic self-government. They create a risk that successful
candidates will pay more attention to the interests of non-
voters who provide them with money than to the interests of the
voters who elected them. That risk is unacceptable. Thank you.
[The prepared statement of Justice Stevens was submitted
for the record:]
Senator King. Mr. Justice, thank you very much for your
considered remarks. We appreciate your willingness to share
them with us here today. Thank you.
Justice Stevens. Thank you very much.
Senator King. You are excused.
In accordance with the process that we discussed at the
beginning, I will now turn to Senator Cruz for an opening
statement, if you choose to make one.
OPENING STATEMENT OF SENATOR CRUZ
Senator Cruz. Thank you, Mr. Chairman, and I would like to
thank Justice Stevens for being here and joining us. Prior to
being in the Senate, I spent much of my professional career as
an advocate before the Court, and I must say it is a different
position to be on this side of the dais rather than answering
questions from Justice Stevens. And I will note that of all the
Justices, Justice Stevens most often disagreed with the
position of my clients.
And there was no Justice whose questions were more
incisive, more friendly, and, frankly, more dangerous than
Justice Stevens. Always with a twinkle in an eye, he would ask
a question, ``Counsel, would you not just agree with this small
little thing?'' And if you said yes, it would walk you down a
road that would unravel the entire position in your case. So it
is very nice to have the good Justice with us.
I want to thank all of the witnesses who are here for our
second panel as well. This topic is a topic of great
importance. Of the entire Bill of Rights, the First Amendment
is the most important. It is the foundational right of every
other right of citizens that is protected.
I will say that the issue of campaign finance reform, is
perhaps the most misunderstood issue in all of politics,
because campaign finance reform restrictions are always pitched
as, ``Let us prevent corruption, let us hold politicians
accountable.'' And they do exactly the opposite. Every single
restriction this body puts in place is designed to do one
thing; protect incumbent politicians.
And it is powerfully good at that because, at the end of
the day, there are three speakers in a political debate. There
are politicians, there is the media, and there are the
citizens. Campaign finance reform is all about silencing number
three so that the politicians can speak unimpeded. And I will
say there are colleagues of mine in both parties who will stand
up and say, ``These pesky citizen groups, they keep criticizing
me.''
Well, that is the nature of our democratic process. If you
choose to run for public office, there are 300 million
Americans who have a right to criticize you all day long and
twice on Sundays. That is how our system was built. And I will
tell you this, I am certainly one who will defend the rights of
our citizens to speak out, whether I agree with their speech or
not.
The Sierra Club has an absolute right to defend their
views, as does the NRA. Planned Parenthood has an absolute
right to defend its views, as does the National Right to Life.
That is the way our system operates. And campaign finance
reform is all about lower the limits, lower the limits,
restrict the speech, restrict the speech.
And what happens is the only people who can win elections
then are incumbent politicians, because incumbent politicians
have armies of lobbyists and entrenched interests that raise
the money and fund them, and any challenger that comes across
has to raise the money. And if you do not have an army of
thousands upon thousands of bundlers, you cannot effectively
challenge an incumbent, and that is not the unintended effect
of these laws. That is the intended effect.
Our current system makes no sense. Right now we have super
PACs that are speaking on the sidelines. And you have
politicians who play games. Since they cannot speak directly
under the law, they simply will say, ``Who will rid me of this
troublesome cleric?'' And a group springs up and speaks and if
this group is supporting you, you kind of hope what they say
bears some resemblance to what you believe, but you are not
allowed to talk to them. So if they happen to get it wrong,
there is not a darn thing you can do.
A far better system would be to allow individuals unlimited
contributions to candidates and require immediate disclosure.
As John Stuart Mill said, let the marketplace of ideas operate,
let more speech counter bad speech, rather than this silly game
we play right now.
Now, I will note there are a series of canards that get
discussed in this issue. The number one canard is money is not
speech. We can restrict money because it has nothing to do with
speech. That statement is categorically, objectively false.
Money is and has always been used as a critical tool of speech,
whether publishing books, or putting on events, or broadcasting
over the airwaves.
And I would suggest to each of the witnesses and to
everyone thinking about this issue, ask yourself one question.
For every restriction that members of Congress or advocates put
forth, ask yourself one question. Would you be willing to apply
that same restriction to the New York Times? And let me know.
The New York Times is a corporation, so anyone who says
corporations have no rights, fine.
There are some who say, ``Let us restrict political speech
within 90 days of an election.'' Very well then. Would you be
willing to say the New York Times may not speak about politics
within 90 days of an election? McCutcheon said you cannot tell
citizens they can only support nine candidates. If they want to
support 10 or 11 or 12, they are entitled to do so.
If you think McCutcheon is wrong, would you be willing to
tell the New York Times, ``You may only speak about nine
candidates, or only candidates in New York?'' Look, those
restrictions are all obviously and facially unconstitutional,
and I would ask you, Why does a corporation like the New York
Times or CBS or any other media corporation, in Congress's
view, enjoy greater First Amendment rights than individual
citizens?
Our democratic process is broken and corrupt right now
because politicians in both parties hold onto incumbency. We
need to empower the individual citizens, and I will say this in
closing. I agree very much with Justice Hugo Black who famously
said, with regard to the First Amendment, the words Congress
shall make no law abridging the freedom of speech means exactly
what it says.
No law means no law, and we should be vigorous protecting
the rights of individual citizens to be engaged in the
political process and hold every one of us on both sides of the
aisle accountable. It is the only thing that keeps our
democratic process working. Thank you, Mr. Chairman.
Senator King. Senator Udall.
OPENING STATEMENT OF SENATOR UDALL
Senator Udall. Thank you very much, Chairman King, and good
morning, and thank you for holding this very important hearing.
I want to thank the witnesses that I know are going to be here
later to discuss what I think is a very, very important topic.
Let me say to the Chairman of the Rules Committee, Chairman
Schumer, I really appreciate your statement that we are going
to have a vote this year on a constitutional amendment. I think
it is about time. We have had several votes. I think we had one
in 1997, we had one in 2001, but these rulings by the Supreme
Court have gone so far that we are really ripe for having a
vote and trying to coalesce around something.
I know that Justice Stevens has left, but I want to say the
words I had in my statement to him. I am sure it will get to
him. As the author, Justice Stevens, of the dissent in Citizens
United, you wrote that, ``The Court's ruling threatens to
undermine the integrity of elected institutions across the
nation.''
And I have found myself agreeing with Justice Stevens.
Unfortunately, this is another of those times. Four years after
Citizens United, the damage continues. The Court's decision
this month in McCutcheon was one more step in dismantling our
campaign finance system. It is now crystal clear an amendment
to the Constitution is necessary to allow meaningful campaign
finance rules.
And as I heard Chairman Schumer talk about the issue of it
being absolute, that is what we are talking about, is allowing
meaningful campaign finance rules, not in any way abridging the
First Amendment.
Most Americans do not have unlimited dollars to spend on
elections around the country. They only get their one vote.
They can support one candidate, the one who represents their
district or state, but for the wealthy and the super-wealthy,
McCutcheon says they get so much more. That decision gave them
a green light, full speed ahead to donate to an unlimited
number of candidates.
Now a billionaire in one state gets to influence the
elections in 49 other states. Under McCutcheon, one donor can
dole out $3.6 million every two years, just like that. Consider
this: An American citizen working full-time making minimum wage
would have to work 239 years to make that kind of money, 239
years.
The Court has shown a willingness to strike down sensible
regulations by a narrow majority and is returning our campaign
finance system to Watergate-era rules, the same rules that
foster corruption, outraged voters, and promoted campaign
finance standards in the first place.
But our campaign finance system was in trouble long before.
The Citizens United and McCutcheon decisions just picked up the
pace. The Court laid the groundwork many years ago, and I know
Justice Stevens mentioned this, in the case of Buckley versus
Valeo. It goes all the way back to 1976.
The Court ruled that restricting independent campaign
expenditures violates the First Amendment right to free speech.
In effect, money and speech are the same thing. This is
tortured logic and ignores the reality of political campaigns.
The outcome is not surprising. Elections have become more about
the quantity of cash and less about the quality of ideas, more
about special interests and less about public service.
We have a broken system based on a deeply flawed premise.
That is why I introduced SJ Res. 19 last June. It now has 35
co-sponsors, and I think--I believe Senator King and Senator
Schumer are both on it. It is similar to bipartisan resolutions
in previous Congresses. Actually, it started with Senator Ted
Stevens, I believe, back in 1983. So it has true bipartisan
roots and is consistent with the amendment that Justice Stevens
has proposed.
It would restore the authority of Congress stripped by the
Court to regulate the raising and spending of money for Federal
political campaigns. This would include independent
expenditures and it would allow states to do the same at their
level. It would not dictate any specific policies or
regulations, but it would allow Congress to pass sensible
campaign finance reform, reform that withstands constitutional
challenges.
In the Federalist Paper Number 49, James Madison argued
that the U.S. Constitution should be amended only--and he used
this term--only in great and extraordinary occasions should we
go with a constitutional amendment, and I agree with him. I
also believe we have reached one of those occasions. Free and
fair elections are a founding principle of our democracy. They
should not be for sale to the highest bidder.
This effort started decades ago. There is a long, and I
might add, bipartisan history here. Many of our predecessors
from both parties understand the danger. They knew the
corrosive effect money has had on our political system. They
spent years championing the cause.
In 1983, the 98th Congress, Senator Ted Stevens, introduced
an amendment to overturn Buckley, and in every Congress from
the 99th to the 108th, Senator Fritz Hollings introduced
bipartisan constitutional amendments similar to mine. Senator
Schumer and Cochran continued the effort in the 109th Congress.
And that was before the Citizens United and McCutcheon
decisions, before things went from bad to worse.
The out of control spending after Citizens United has
further poisoned our elections, but it has also ignited a broad
movement to amend the Constitution. McCutcheon is the latest
misguided decision, but it will not be the last. It is time for
Congress to take back control and pass a constitutional
amendment.
And again, Chairman King and Chairman Schumer, I thank you
for holding this hearing and I think it is very, very timely on
the heels of McCutcheon. Appreciate it.
Senator King. Thank you, Senator.
OPENING STATEMENT OF SENATOR WALSH
Senator Walsh. Thank you Senator King, Chairman Schumer,
and Ranking Member Roberts.
Citizens United unleashed a torrent of dark money into our
elections, allowing wealthy donors and corporations to shuffle
money among third party groups to evade disclosure laws and
influence elections.
Last month, the Supreme Court again promoted the influence
of the wealthy in our democracy by striking down a 40-year-old
limit on how much the richest donors can give to candidates and
parties.
As it is, less than one-percent of Americans provide over
two-thirds of contributions. Small-dollar donors, the average
American, are being made irrelevant by a campaign finance
system that allows wealthy donors to secretly fund attack ads.
Concentrations of wealth and dark money have a big impact
in Montana. Our airtime is cheap and our state contribution
limits are relatively low. Montana's voters don't yet need to
be able to write million dollar checks to get a candidate's
attention, but this ease of access makes Montana's elections a
prime target for dark money.
Indeed, Montana has frequently been at the center of the
campaign finance debate. Our state ban on corporate campaign
expenditures and donations, passed by voter initiative in 1912
after William Clark used his mining wealth to buy a Senate
seat, was struck down because of Citizens United. Since then,
we've seen dark money groups like American Tradition
Partnership ignore our disclosure laws and illegally coordinate
with candidates to influence elections.
The role of average Americans in our democracy is in danger
if wealthy donors and secretive groups can spend vast amounts
of undisclosed money to influence elections.
We must act to strengthen our disclosure requirements, and
we must find a way to empower small, individual donors.
Otherwise, our elections will be controlled by the few
Americans that can afford to write million-dollar checks. I
want to thank the Chair and the witnesses, and I look forward
to their testimony.
Senator King. If our next panel could take their seats, I
will introduce you. We are going to hear from this panel in
alphabetical order. First is Mr. Donald F. McGahn, a partner
with the law firm of Patton Boggs. Previously he was a
Commissioner and Chairman of the FEC. He also served as the
general counsel for the National Republican Congressional
Committee for ten years.
Second is Norman Ornstein, Resident Scholar at the American
Enterprise Institute, well-known columnist, and frequent
commenter on campaign finance issues. Third is Mr. Trevor
Potter, President and General Counsel for the Campaign Legal
Center. Previously he was a Commissioner and Chair of the FEC
and later served as general counsel to John McCain's 2008
presidential campaign.
Fourth, Ms. Ann Ravel, former Chair of the California Fair
Political Practices Commission, currently Vice Chair of the
Federal Election Commission. And finally, Neil P. Reiff, who is
a founding member of the law firm of Sandler, Reiff, Young &
Lamb, and a former deputy general counsel for the Democratic
National Committee.
Thank you all for joining us today and I welcome your
opening statements. If you have more lengthy statements, they
can be submitted for the record, but we look forward to hearing
from you and then we will discuss these issues. Mr. McGahn.
STATEMENT OF DONALD F. McGAHN, ESQ., PATTON BOGGS, LLP,
WASHINGTON, D.C.
Mr. McGahn. Chairman King, Ranking Member Roberts, and
members of the Committee, thank you for the opportunity to
appear before you today. It is an honor and a privilege,
particularly in light of the appearance of former Justice John
Paul Stevens. Per the Committee's request, I submitted written
testimony prior to the hearing, jointly filed with another
panelist here today, Neil Reiff.
Mr. Reiff and I are practitioners in the area of campaign
finance and our views are shaped by decades of experience in
advising and representing real people who wish to participate
in politics in a legally compliant manner.
Although we have similar clients, and are not here to
represent the views of any of those clients, we differ in one
significant way. One of us represents Republicans,
conservatives, and Libertarians; while the other represents
Democrats, liberals, and progressives. Such a partisan
difference in the modern world would ordinarily preclude any
notion of common ground, but not here.
Recently we co-authored an article that was published in
Campaigns and Elections magazine that explained our views on
the good, the bad, and the ugly of the current law,
particularly the aspects imposed by the Bipartisan Campaign
Reform Act of 2002, commonly called McCain-Feingold.
In our article which we have already submitted to the
Committee, we explained that much of what many perceive to be
the problems in the current system can be traced back to the
underlying statute itself. As we predicted back in 2002,
McCain-Feingold has become a warped version of itself, where
heavily regulated candidates and party committees have taken a
backseat in our current system.
We suggest a different approach, one that flows from a
different premise firmly grounded in our shared First Amendment
tradition, that in order for voters to be truly informed, they
need to hear directly from the candidates themselves. Thus, the
candidate's voice ought to be the central voice in American
democracy. In our view, the parties are the best vehicles to
assist with achieving that goal. In other words, political
parties are uniquely situated to echo their candidate's
message.
Critically, our views and suggestions are not designed to
simply transfer relevancy back to the parties for relevancy's
sake. Recall that the plaintiff in Buckley versus Valeo,
Senator James Buckley of New York, was not nominated by either
of the two major parties, and it was precisely that sort of
candidate, one outside of that era's establishment, that felt
the burdens of that wave of reform the most.
We care, first and foremost, about grassroots and local
activity by ordinary citizens, and believe that McCain-Feingold
in its effort to change the culture of Washington, D.C. has
reached too far into state and local politics and contributed
to pushing local activists outside the parties.
Unfortunately, current law has placed parties at a
competitive disadvantage and has federalized virtually all
state and local party programs, which brings us to the 2014
campaign landscape. Certainly direct contribution limits
remain, albeit at artificially low levels that do not match the
rate of inflation that has occurred since they were first
instituted.
For example, the $10,000 state party limit in today's
dollars ought to be, if adjusted for inflation, about $48,000.
In addition to regular inflation, the cost of campaigning has
skyrocketed, particularly due to the cost of television
advertising. Other prophylactic measures imposed by the law
have been struck by the courts, except those that limit the
ability of political party committees to effectively assist
their candidates.
Candidates are struggling to be heard over the din of
single issue and other groups and the party committees who
historically had been a candidate's natural ally has
significantly diminished and essentially been replaced by
independent super-PACs and single-issue non-profits. So that
just seems backwards and, ironically, is the opposite of the
so-called reform.
Some claim more disclosure is the answer. Separate and
apart from my work with Mr. Reiff, in my own view, this is not
the answer. Certainly campaign disclosure has survived judicial
review, albeit in a more limited form than that which was
originally passed. But disclosure has had a mixed record in the
courts, sometimes upheld, but often struck or limited.
Whether one looks to Talley versus California, Thomas v.
Collins, NAACP versus Alabama, Buckley versus Valeo, or most
recently, Davis versus FEC, disclosure has its limitations. As
Justice John Paul Stevens himself said, writing for the Court's
majority in McIntyre versus Ohio, quote, Anonymity is a shield
from the tyranny of the majority. It exemplifies the purpose
behind the Bill of Rights and of the First Amendment in
particular, unquote.
Justice Stevens also said, speaking for the Court, quote,
the freedom to publish anonymously extends beyond the literary
realm, unquote. Continuing, On occasion, quite apart from any
threat or prosecution, an advocate may believe her ideas would
be more persuasive if the readers are unaware of her identity.
Anonymity, thereby, provides a way for a writer who may be
personally unpopular to ensure that readers will not be
prejudge her message simply because they do not like its
proponent. Thus, even in the field of political rhetoric where
the identity of the speaker is an important component of the
many attempts to persuade, the most effective advocates have
sometimes opted for anonymity, unquote.
And what of McCutcheon versus FEC? We anticipate that
McCutcheon will help address the unfairness, the parties, and
most candidates to some degree, but it did not strike
limitations and prohibitions on direct contributions to
candidates and party committees. What was struck was the so-
called biennial limit, essentially an umbrella limit that
prevented citizens from giving to more than a few handful of
candidates and party committees.
Thus, the impact of McCutcheon. More candidates, including
challengers and those that are not seen as safe bets, will have
access to additional financial support. Hopefully, direct
contributions will no longer be the province of a select few
well ensconced within the ruling class.
Similarly, the upstart challenge of candidates' natural
ally, the political party, will no longer have to compete with
each other for resources to the degree caused by McCain-
Feingold. But this sort of change is not enough to fix what
ails our system of privately funded campaign finance. McCain-
Feingold must be revisited. Thank you for the opportunity to
present these views.
[The prepared joint statement of Mr. McGahn and Mr. Reiff
was submitted for the record:]
Senator King. Thank you, Mr. McGahn. Mr. Ornstein.
STATEMENT OF NORMAN J. ORNSTEIN, AMERICAN ENTERPRISE INSTITUTE,
WASHINGTON, D.C.
Mr. Ornstein. Thanks so much, Mr. Chairman, and it is
really a pleasure to be here to talk about this issue. I want
to start by commending Senator Cruz for his full-throated
support of disclosure, and I look forward to his vote for the
DISCLOSE Act when it comes up in the Senate.
Senator King. I wrote that down myself.
Mr. Ornstein. I also want to thank Senator Roberts for
putting up the text of the First Amendment, which I read and
re-read as I have done so many times and I am still looking for
the word money in the First Amendment. And I just have to say
that if money is defined as speech, then the rights of citizens
as equals in this process to participate simply gets blown
away. Those who have lots of money have lots of speech; those
who have little money have very little or no speech.
Having said that, I want to really talk about two larger
concerns that are generated by the multiple recent moves that I
believe have knocked the pins out from under the regulatory
regime that has long operated in American politics.
I wrote my testimony going back to the Tillman Act in 1907,
but as I have reflected on it, it really does take us back at
least to the 1830s, and the two things I want to talk about
are, first, the corrosive corruption that has caused when you
remove the modest limits on money that have existed, and
second, a real focus of the hearing, of course, is the efforts
to limit disclosure and enable these huge flows of dark money
to enter the system without the accountability necessary in a
democratic political system.
As I look through history, what we know is that the focus
on corruption, the concerns about corruption and money are not
new at all. They go back at least to an attempt, in 1837, to
prohibit the parties from shaking down Government employees and
giving contributions.
As historian John Lawrence noted, Abraham Lincoln, who I
believe was a Republican, warned that concentrated capital had
become, quote, enthroned in the political system, and he
worried about an era of, quote, corruption in high places until
the republic is destroyed. I have to believe that if Abraham
Lincoln were around today, he would be reinforced in that
particular judgment.
As we went through the corruption in the Grant
Administration that led to the Pendleton Act in 1883, the
corruption involving outsized corporation influence on
President Theodore Roosevelt that led to the Tillman Act in
1907, the Teapot Dome scandal that resulted in the Federal
Corrupt Practices Act of 1925, the abuse of Federal employees
that led, in 1938, to the passage of the Hatch Act, the Taft-
Hartley Act in 1947, the Watergate scandal spurring the Federal
Election Campaign Act of 1974, and that was revised, of course,
by Buckley, and on through the abuses of soft money and in
other ways that brought about the Federal Election Campaign--
the Bipartisan Campaign Reform Act of 2002.
It was scandals that led to corruption that led to change.
All of that focus was turned on its head by Citizens United
brought as a very narrow, as applied, decision and then
broadened out to basically take away almost all of those
protections, at least going back to 1907, and then to
McCutcheon.
Now, I want to make a couple of broad points, particularly
about McCutcheon. Despite some of the other focal points, what
has alarmed me the most about the McCutcheon decision was
Justice Roberts basically now taking corruption out of the
equation, and the appearance of corruption entirely out of the
equation, and defining corruption in the narrowest way, as a
quid pro quo that would only be applicable in a case like
ABSCAM or its more popularized American Hustle variety where
you have videotape and an exchange of money in return for a
favor.
That is so far away from the real world, and in particular
now with McCutcheon, where officials, elected officials can
solicit large contributions, something that we tried to
restrain deeply in the McCain-Feingold bill. It takes me back
to an era that I remember well where we had president's clubs
and speaker's clubs and leader's clubs around here with a menu
of access.
Give $10,000 and you get to meet with all the Committee
chairs. Give $25,000, you could have a one-on-one with the
Speaker. This is a trade of access-for-money and it leads down
a dangerous path and a path that becomes even more dangerous
when we do not have disclosure of who is involved with a lot of
these contributions.
Frankly, the notion that McCutcheon is going to enhance
disclosure was, I think, blown out of the water by Justice
Breyer's very compelling dissent, and what we have already seen
happening within a day after McCutcheon was passed where high-
priced lawyers, some of whom are in this room, are working very
feverishly to make sure that these contributions get channeled
through multiple committees back and forth in different ways so
that we will not have any effective disclosure.
Let me end with just a few recommendations for the
Committee or for what Congress could do from now on. First,
Congress should make every effort to pass the DISCLOSE Act. Let
us get some reasonable disclosure. Second, the Senate should
hold public hearings, and this Committee, on the dysfunctional
Federal Election Commission and look to reform it to make it a
reasonably functional body that acts to enforce the law, not to
thwart it.
Third, for every hearing that we see on the purported
scandal at the IRS, which is trying to apply the law now, which
says that organizations called 501(c)(4) shall be exclusively
social welfare organizations, we should have a hearing on the
real meaning of social welfare organizations and the need to
clarify those regulations.
Fourth, the Senate should pass a rule amending its ethics
code to make it a violation for Senators or senior staffers to
solicit the large contributions for party committees now
allowed under McCutcheon. Next, you should consider the broader
reform of the campaign finance system, and I am delighted that
there will be a vote on Senator Udall's constitutional
amendment.
We have a lot of work and a lot of heavy lifting to do. The
next huge scandal is going to bring about a new drive for
reform, but before that, I fear that things will get a whole
lot worse. Thank you.
[The prepared statement of Mr. Ornstein was submitted for
the record:]
Senator King. Thank you, sir. Mr. Trevor Potter.
STATEMENT OF TREVOR POTTER, ESQ., PRESIDENT AND GENERAL
COUNSEL, CAMPAIGN LEGAL CENTER, WASHINGTON, D.C.
Mr. Potter. Mr. Chairman, thank you for the opportunity to
testify today, Senator Roberts, Senator Udall. I appreciate the
opportunity to be here to talk about these important issues.
I know, Mr. Chairman that you have said that you would like
the focus to be on the McCutcheon case and the issue of
disclosure and the lack of disclosure. I would make two brief
points in response to testimony and comments today about the
McCain-Feingold law.
First, I was pleased to see the endorsement by my
colleagues on this panel, Mr. McGahn and Mr. Reiff, in their
written testimony today of the McCain-Feingold goal of
prohibiting, ``six and seven-figure contributions'', to
national party committees, ``in exchange for access to
Executive Branch personnel as well as members of Congress.''
I agree such huge contributions were and are potentially
corrupting and give rise to the appearance of corruption, and
thus, are bad for our democracy. I worry that they will
resurface after the McCutcheon decision through the device of
contributions to party committees participating in joint
fundraising committees. I also worry that the Supreme Court's
majority in Citizens United and McCutcheon does not share the
same concern about the corruption inherent in Congress or the
Executive Branch selling access that Mr. McGahn, Mr. Reiff, Mr.
Ornstein and I do.
My second point about party committees under McCain-
Feingold is that they have actually done quite well
financially. Look at the picture of two elections, 2000, the
last presidential campaign before McCain-Feingold, and 2012,
our most recent.
In 2000, the two political parties and their presidential
candidates raised and spent a combined total of $1.1 billion in
that election, a huge sum. Today, adjusted for inflation, that
would be $1.45 billion. Compare that to the amount spent in the
most recent election by the parties and their candidates. In
2012, the total was $2.5 billion, double the actual amount, up
80 percent in inflation-adjusted dollars.
It is true that outside groups also spent significant sums
in 2012, but the national party committees and their candidates
clearly were well-resourced, better than before McCain-
Feingold.
In terms of disclosure, or the lack of disclosure, my
written testimony describes how we have ended up in a situation
where the Supreme Court stated in Citizens United the
importance to our democracy of full disclosure of the sources
of campaign funding, but we have less and less of it. My
written testimony says that the FEC has deadlocked repeatedly
on whether to issue a Notice of Proposed Rulemaking to deal
with the question of disclosure after Citizens United. That is
correct. The Commission appears to still be deadlocked on this
issue.
However, I would like to note for the record that the
Commission, in late 2011, managed to issue a Citizens United
rulemaking notice that did not mention disclosure. The
Commission even had a hearing, but that is the end of the
story. No new regulation, no action on disclosure.
Mr. Ornstein's written testimony demonstrates how
dramatically disclosure of the sources of funding of public
advertising has fallen. In 2004, the first election under
McCain-Feingold, 98 percent of outside groups running campaign
ads disclosed their donors. A few years later, that number was
down to 34 percent. In absolute dollars, the amount spent on
advertising, only 40 percent was disclosed as to source in 2012
by these outside groups.
Why is this a problem? Let me turn to Justice Kennedy's
explanation in Citizens United. He said, ``with the advent of
the Internet, prompt disclosure of expenditures can provide
shareholders and citizens with the information needed to hold
corporations and elected officials accountable for their
positions and supporters.'' Shareholders can determine whether
their corporations political speech advances the corporation's
interest in making profits, and citizens can see whether
elected officials are, ``in the pocket of so-called moneyed
interests.''
The First Amendment protects political speech; and
disclosure permits citizens and shareholders to react to the
speech of corporate entities in a proper way. This transparency
enables the electorate to make informed decisions and give
proper weight to different speakers and messages.
So Justice Kennedy said the deal was unlimited independent
expenditures, but full disclosure of funders. And today, we
have only half the deal, and as Justice Kennedy says, speaking
for eight justices, that is a problem for our democracy.
How can shareholders hold their corporations accountable
for the shareholder money spent in political campaigns if they
have no idea what is being spent, and for and against which
candidates? How can voters hold elected officials accountable
if they do not know which moneyed interests are financing those
officials' election?
Finally, how can the electorate, voters, make informed
decisions and give proper weight to different speakers and
messages, as the Court says is important to the functioning of
our democracy, if voters do not know who is financing the
constant barrage of advertising run by these groups? Thank you,
Mr. Chairman.
[The prepared statement of Mr. Potter was submitted for the
record:]
Senator King. Thank you, Mr. Potter. Our next panel member
is Ann Ravel, former Chair of the California Fair Political
Practices Commission and currently Vice Chair of the Federal
Election Commission. Ms. Ravel, thank you for joining us.
STATEMENT OF THE HONORABLE ANN M. RAVEL, VICE CHAIR, FEDERAL
ELECTION COMMISSION, WASHINGTON, D.C.
Ms. Ravel. Thank you, Mr. Chairman, Ranking Member Roberts,
and Senator Udall. Thank you for inviting me to testify today.
As indicated, I am the Vice Chair of the Federal Election
Commission, but I am not testifying in that capacity today, nor
am I speaking for the Commission. Instead, my testimony
concerns a case pursued during my tenure as Chair of the
California Fair Political Practices Commission, FPPC, to expose
dark money in a California election.
FPPC versus Americans for Responsible Leadership--and I am
going to use the word of the day--is a Byzantine story of
campaign contributions being funneled all over the country in
an apparent effort to avoid revealing to the public who is
behind political campaigns.
We discovered that networks of non-profits anonymously
injected millions of dollars into our election by using shell
corporate entities, wire transfers, and fund-swapping. This
allowed donors to skirt disclosure laws and cloak their
identities from the public view.
Just a few weeks before the 2012 election, a California
political action committee, which was focused on supporting one
and defeating another ballot measure, received an $11 million
contribution. This was the largest anonymous contribution ever
made in the history of California elections. The contribution
came from an Arizona non-profit, Americans for Responsible
Leadership, or ARL, which had never before spent a dime in
California.
After a complaint was filed with the FPPC, we attempted to
determine whether ARL abided by the requirements of California
law to disclose the source of the contribution. We eventually
had to seek relief in court. The California Supreme Court ruled
unanimously in an emergency Sunday session that ARL had to hand
over its records.
Because of this, the day before the election, ARL revealed
that the sources of the $11 million were two other non-profits,
one based in Virginia and another in Arizona called CPPR. ARL
admitted that it functioned solely as an intermediary to
receive the money from the two non-profits and funnel it to the
California political action committees.
This is a clear violation of the law that prohibits making
contributions in the name of another. After the election, a
full investigation found that approximately $25 million raised
from California donors who wished to remain anonymous went to
the Virginia non-profit and then was transferred to the other
non-profit, CPPR.
There was a tacit understanding that CPPR would direct
other funds back to California in the same amount or more
through an intricate web of groups. After passing through
multiple non-profits around the country, $15 million was then
returned to California to the original political committees to
spend on the ballot measures. $11 million of that money was
funneled through ARL and $4 million through an Iowa non-profit.
Because of the FPPC litigation that was pending, the
remaining $10 million of the original $25 million raised from
the California donors was not anonymously pumped back into the
California election. The FPPC, which is a bipartisan
commission, unanimously levied a record-setting fine of $1
million, and also sought disgorgement from the recipient
committees of the $15 million in improperly disclosed funds.
The FPPC's investigation and litigation demonstrates
clearly that public officials from both parties can work
together to uphold disclosure laws, but the story of FPPC
versus ARL also shows that dark money is a national problem
that is best solved on the Federal level. I would be glad to
answer your questions about this case. Thank you again for the
opportunity to speak.
[The prepared statement of Ms. Ravel was submitted for the
record:]
Senator King. Thank you for joining us today. Finally, Neil
P. Reiff, as I mentioned, a lawyer here in Washington and
former Deputy General Counsel for the Democratic National
Committee. Mr. Reiff.
STATEMENT OF NEIL P. REIFF, ESQ., SANDLER, REIFF, YOUNG & LAMB,
WASHINGTON, D.C.
Mr. Reiff. Mr. Chairman, thank you for the opportunity to
testify today. I am here today as a practitioner in the field
of campaign finance law and I represent over 40 Democratic
state party committees. As a recent article explains, McCain-
Feingold has had a profound effect on state and local party
committees, and I would like to provide a couple of examples
that illustrate how the law has federalized most of the state
parties' activities in connection with state and local
elections.
As Mr. McGahn said, it ought to be revisited. In our
article, we agree that national party soft money ban and the
limitation on solicitations by national party officers, Federal
candidates, and officeholders achieve the goals to address soft
money practices at the national level at the time of its
passage.
However, Congress could have and should have stopped there.
Instead, with little forethought to its consequences, McCain-
Feingold extended its reach to state and local party committees
who, unlike national party committees, were thoroughly invested
and acted in state and local elections.
Under McCain-Feingold, state parties have been subject to a
labyrinth of regulation that seeks to intercept all of their
activities and force them in the Federal system, regardless of
whether those activities have any relation to Federal elections
or candidates. McCain-Feingold federalized all elections
through its introduction of a new term, Federal election
activity, which subjected traditionally local activities, such
as voter registration and get-out-the-vote to Federal
regulation and limitation.
The implementation of this new concept has proven rocky.
When passed, it was claimed to be a narrowly targeted anti-
circumvention measure. Defense of the law followed suit and
minimized the reach of the new law. After the law was upheld in
McConnell versus FEC, however, supporters changed their tune
and argued that the Federal Election Commission, the agency
charged with enforcing the law, was not reading the new
mandates broadly enough. Additional litigation ensued and
courts instructed the FEC to rewrite and broaden its rules
governing state and local parties.
For example, under the FEC's recently redefined definition
of get-out-the-vote, essentially all public communications
undertaken by a state party committee, even those made totally
independent of any Federal candidate involvement, are subject
to Federal law merely by exhorting the voter to go vote for a
state or local candidate. Therefore, if a party committee
wishes to air a television or radio ad that tells listeners or
viewers to go vote for Smith for Governor, Federal law may
mandate that this advertisement be paid for entirely or in part
with Federally regulated funds.
Prior to McCain-Feingold, state law governs state or local
candidate support, but today, parties are governed by Federal
law; whereas, a non-party group could run the same exact
advertisement free of such Federal limitation.
In addition, under the FEC get-out-the-vote definition, if
a party committee sends out a mailing on behalf of a state or
local candidate and merely informs the voter on when the polls
are open, the location of their polling place, or how to obtain
an absentee ballot, Federal law regulates and limits the
funding of the mail piece based upon the provision of such
information in the mailer even when the mailing makes no
reference to any Federal candidate.
It is common practice for state parties to avoid including
such information in mailings in order to avoid federalizing
those communications. Simply put, party committees have been
muzzled when it comes to their ability to inform voters of the
most basic voting information if they want to avoid being
subject to Federal regulation. We cannot conceive of any policy
justification that would support this, particularly when other
groups who engage in the exact same sort of activity do so
without such regulation.
McCain-Feingold has had other detrimental effects. Its
federalization of state parties has created disincentives for
state parties to run joint campaigns that feature the entire
party ticket. Prior to McCain-Feingold, it was commonplace for
state parties to pay for communications that featured
candidates from the top of the ticket to the bottom of the
ticket.
In addition, state and local candidates have bypassed party
committees when engaging in advocacy and get-out-the-vote
activities due to the incompatibility of Federal and state law.
The current structure of the law has caused a significant
demise in state and local party relevancy as funding sources
seek out less regulated organizations such as Federal, state,
and local super PACs who may independently spend money without
any restriction on how those communications are funded and how
much voting information that they can provide.
The demise of parties has had serious implications for the
American political system. Party committees have played a vital
role in grassroots campaigning. Historically, parties have been
instrumental in delivering positive party messaging, an
increasing turnout in American elections to grassroots voter
contact methods, now what some may characterize as single issue
outside groups have come in to fill the void.
Although such activities are perfectly legal, it seems to
be exactly the opposite system of what was envisioned by
proponents of reform. Recently, the Association of State
Democratic Chairs passed a unanimous resolution at its meeting
in November of last year that calls on Congress and the FEC to
reevaluate how state and local party committees are regulated.
We have provided a copy of this resolution and legislative
recommendations made by the ASDC for your review. None of the
proposals made by the ASDC advocate for the repeat of any
contribution limit. Rather, the ASDC seeks common sense
regulation that balances the need to have vital party
organizations along with the need to provide safeguards against
political corruption.
Although Mr. McGahn and I each have a number of ideas and
suggestions regarding specific changes to the law, we both
believe that any common sense steps to help revitalize state
and local party committees would be helpful. I have a few
examples.
Refine and simplify the existing volunteer exemptions for
grassroots activities to make them easier to use by state party
committees and consider expanding them to other grassroots
activities.
Repeal the McCain-Feingold provisions that have needlessly
federalized joint and non-Federal campaign activities
undertaken by state party committees. In the alternative,
modify the FEC's current interpretation of the existing rules
to scale back the expansive scope that essentially federalizes
all party campaigning on behalf of state and local candidates.
And finally, index contribution limits to party committees
as these limits were inexplicably excluded from the
contribution indexing provisions provided for by McCain-
Feingold. Similarly to the extent that limitations on
coordinated party expenditures are still required, update those
limits to more closely reflect modern economic reality.
In the short time we have today, we can only briefly touch
upon the Byzantine nature of Federal regulation that state
parties are subject to. Thank you for the opportunity to
present our views.
Senator King. Thank you, Mr. Reiff. We are going to have
seven-minute question rounds. I would like to begin. First, the
term Byzantine has been used a couple of times. This is a chart
prepared by the Center for Responsive Politics that is a chart
of money in 2012. I think we are insulting the Byzantines,
frankly, by likening this to their conduct. This chart will be
available in larger form.
It is illustrative of what is going on. I did a rough
calculation. There are $300 or $400 million here that is
flowing through all of these various organizations. They have
even come up with a name which I think is a marvelous one, a
disregarded entity. That is--I do not know quite what that it
is. It is an oxymoron, I would think.
Mr. Ornstein, in preparing for this hearing, to coin a
phrase, my conclusion was it is worse than I thought. We got a
report just yesterday from the Wesleyan Media Project, which is
a very interesting project that does not try to track
contributions, because a lot of them are not disclosed, but
tracks ads on television all over the country and then
attributes a value to them based--estimated value--based upon
the air time in the media market. And, of course, it is only
air time. It is not production or other costs.
But the startling thing, this is spending by non-disclosure
groups' cycle to date, in other words, to April 29th,
yesterday. And what struck me is the gigantic growth in these
independent expenditures. And that is what I meant in my
opening statement, that this is not a little incremental
change. This is a revolutionary change. And the same thing,
this is non-disclosure money cycle to date. This is outside
spending cycle to date and these are the off-year elections,
and you can see between 2010 and 2014 an enormous growth,
almost ten times more.
Would you say that this is an accelerating problem and that
is one of the reasons we should have to address it?
Mr. Ornstein. It is an exploding problem, Mr. Chairman, and
I think what we have seen is a set of very often explicit
efforts to try to hide where the money is coming from. It is
not only through these--I will not call them Byzantine--bizarre
sets of arrangements. And Ann, I think, described very well how
this can play out across many state lines.
I only briefly alluded to the role of the IRS in all of
this, and one thing that we know is that moving towards 2012,
there was another explosion which was applications for
501(c)(4) status from groups that, in many cases, and we knew
leading up to this, were moving into influence elections and
were using that IRS status simply to hide the names of donors.
We know that American Crossroads created another entity,
Crossroads GPS, and basically the head of it said very clearly,
this is for people who do not want to disclose. So lots of
groups moved in there. The IRS, in a pretty ham-handed way,
tried to deal with this explosion by using code words.
Of course, the reality is, if you have a group that has the
name party in it and they say in their application that they
want to influence elections, they should be registering under
Section 527 of the Code. And now the IRS is moving to try and
come up with common sense regulations that keeps these sham
groups that are not social welfare organizations in any way,
shape, and form from doing what the law intended and they are
being attacked viciously.
Senator King. We all remember the Swift Boat Veterans for
Truth in 2004. That was a 527. But that required disclosure of
donors. As I understand it, that vehicle has atrophied and is
very rarely used, and now it is the 501(c)(4)s, which do not
require disclosure of donors and that is where all the money
seems to be going. Is that correct?
Mr. Ornstein. That is correct. And some of the other
501(c)s may be used as well. But we know that in 2000, before
McCain-Feingold, Congress actually did move to try and require
disclosure, more disclosure from 527s.
It is also important to emphasize what Trevor Potter put
very eloquently into his testimony, which is, so much of the
problem here is not based on either the law or the court, which
is very much in favor of disclosure. It is the Federal Election
Commission which has tried to redefine--you know, take Pat
Moynihan's term of defining deviancy down.
They have tried to define disclosure down to make it even
more difficult, and that is the root of some of the problems
here as well.
Senator King. Well, Mr. Potter, as I went back and looked
at Citizens United and McCutcheon, it was clear that the whole
holding was based upon a premise of vigorous disclosure. That
was how the courts justified--those two courts--justified
eliminating the limits, but they posited a disclosure regimen
that does not exist. Is that correct?
Mr. Potter. Yes. As an outsider, I think one of the
mysteries to the Supreme Court's decision in Citizens United is
the very strong language by Justice Kennedy where he says
``until today, we have not had a system with unlimited
corporate spending but full disclosure.'' And now that we have
corporate spending allowed in Federal elections and full
disclosure, and then he goes as I quoted in my opening
statement, ``Citizens will be able to figure out who is
spending the money. Shareholders will know what their
corporations are up to.''
So the question is, why did Justice Kennedy say that? I
think the answer is pretty clear, which is he is looking at the
law. He is looking at McCain-Feingold, the Bipartisan Campaign
Act, which requires disclosure of the sources of spending of
advertising if someone gives more than $1,000 to the groups
that are doing it or if it is done through a separate group
they set up for that spending.
Senator King. Before my time expires, the issue about
disclosure, as I have heard it articulated, that if donors'
names are disclosed, they will be subject to intimidation and
threats and those kinds of things. My old colleague from
Virginia law school, who I know as Nino Scalia--I understand is
now Antonin Scalia--said requiring people to stand up in public
for their political acts fosters civic courage without which
democracy is doomed.
In Maine, we have town meetings every spring. Nobody is
allowed to go to a Maine town meeting with a bag over their
head. If they are going to make a speech, they have to
acknowledge who they are, and that is part of the information
that the voters need, it seems to me.
Mr. Ornstein, what do you make of this argument that
disclosure will lead to reactions and intimidation and threats?
Mr. Ornstein. I agree with Justice Scalia very much in this
front. I must say, Mr. Chairman, you know, as I have been
watching the pictures from Ukraine and you see these people not
with bags but with masks over their heads, it made me think
about this a little bit, that there are societies where they
try to hide identities. That is not what America is all about.
And some of the discussion here that goes back to a case
involving the NAACP is really not a very good parallel. It is
one thing if you have threats of death and the like, but in a
democracy where there is rough and tumble, and it is something
actually that I think both Senator Roberts and Senator Cruz
talked about, that is the nature of a democracy.
If you are going to be involved in this process and
somebody is going to criticize you for it, there is nothing
wrong with that. You have to have some reasonable limits, it is
true, if you do have direct intimidation, but there are laws
very much that guard against that already on the books.
Senator King. Thank you. Senator Roberts.
Senator Roberts. I would just like to observe that no one
spending money exercising their First Amendment rights, to my
knowledge, is endorsing fire in theaters or pornography or
noise pollution. I suspect, however, that many on both sides of
the aisle have characterized their opponents as stating noise
pollution or conducting themselves with regard to noise
pollution.
The other thing I would say is the exercise of free speech
that one disagrees with is not pornography, although we all
know it when we see it, when we put on our partisan glasses,
nor is it necessary to label repeatedly, repeatedly to
characterize those with whom you disagree as un-American.
Mr. Ornstein, Norm, the IRS is not moving to promulgate the
regulations that were in place, the exact regulations that were
in place that some of us believe caused the problem with the
IRS trampling on the rights, the First Amendment rights of some
conservative groups, primarily the Tea Party.
They are not moving because they received over 200,000
comments, and by law, you have got to go through them and so
they have stopped, but they have also stopped because Senator
Flake of Arizona and myself, at least suggested to John
Koskinen, the new Commissioner of IRS, that it might be a good
thing to withhold writing the regulations until the Finance
Committee of the United States Senate, Ways and Means Committee
of the House, and the Inspector General would get done with the
investigations.
We are having problems, like every other investigation,
with redaction and other things, but we are persevering and we
are trying to do it in a bipartisan manner, more especially
with the Senate Finance Committee. So they have held off right
now, and I think that is a good idea, and I think once we
finish the investigations, we can determine what actually
happened.
I have some feeling about that as to where that really came
from and I think it came from more than a number of Senators
writing basically to the IRS stating that they felt the
activities of various groups were not in keeping with what they
envisioned the provision to call for. But that aside, I just
wanted to mention that.
You referenced the Hatch Act. Yesterday it was announced
that an FEC attorney resigned for admitted violations of the
Act. According to a release from the Office of Special Counsel,
the employee posted dozens of partisan political tweets,
including many soliciting campaign contributions to the
President's 2012 election campaign and other political
campaigns, despite the Hatch Act restrictions that prohibit the
FEC and other further restricted employees from such activity.
The employee also participated in a Huffington Post live
Internet broadcast via webcam at an FEC facility criticizing
the Republican Party and the presidential candidate at that
time, Mitt Romney.
I think you can understand why reports of this nature make
Republicans somewhat wary of the FEC and their ability to
regulate their behavior. Are we to believe that there are not
others at the Commission who share these views but just have
not been caught expressing them? Now, I mentioned you, Norm,
but really that question is directed to Ms. Ravel, who I think
could give a better answer, although I am sure you could give a
good answer.
Ms. Ravel. Well, as I indicated, Senator Roberts, I cannot
speak on behalf of the FEC, but I will tell you that the FEC
responded very quickly to that issue when it came to the
attention of people within the agency, and understood that it
was totally inappropriate behavior on behalf of an employee.
And further, there has been an investigation internally and
there is no reason to believe that this is extensive or goes
beyond anybody except this one individual who has since been
terminated.
Senator Roberts. That was my next question and you have
already answered it. My question was, in your experience at the
Commission, are any negative views of the Republican Party
widespread among the employees there or members of the FEC?
Even sitting around and having coffee and saying, My God, what
are those crazy Republicans doing now?
Ms. Ravel. Senator----
Senator Roberts. Or what Roberts is doing?
Ms. Ravel [continuing]. I have never heard your name
mentioned----
Senator Roberts. Thank you.
Ms. Ravel [continuing]. At the FEC.
Senator Roberts. At least I am not part of that dark money
scandal.
Ms. Ravel. No. And as I indicated, I was speaking on behalf
of--relating to an incident, the case at the FPPC, but I, in my
six months at the FEC, have never heard any partisan
communications by either employees or Commissioners. While we
all are appointed based on our party----
Senator Roberts. That must be one agency that is an island
in the sun. Mr. McGahn, what do you think about this? What was
your experience in this regard? Should we view this as an
isolated incident or as evidence of a broader problem?
Mr. McGahn. I saw the news and I was very troubled by it.
When the FEC has that issue, I think it is very serious. I
think it certainly calls into question what many of the reform
lobbyists have sold for years, which is that there is this idea
of a non-partisan staff that can exist divorced from politics
and provide objective advice and that sort of thing.
That being said, what I can say is, most of the folks at
the FEC play it straight. They show up on time, they do their
job well, they are very committed to their job, and they do not
have an agenda. But there are some folks who seem to get a
little carried away with themselves from time to time and I
think that is troubling.
The cure for this is, one, the Hatch Act; two, keep in mind
what the FEC is and that it is not. It is not an independent
agency composed of career staff. It is actually six persons
appointed by the President, confirmed by the Senate. It is not
a non-partisan agency. It is a bipartisan agency. And under the
statute, in order for the Commission to actually take action,
it takes at least four of six Commissioners to confirm that.
So if staff get a little carried away, that is not good,
but in my view, the Commission is then--this is a reason why
Commissioners need to remain vigilant and really exercise the
power the Congress has given them under the statute to run the
agency.
The idea that the Commissioners want to delegate to staff
and that sort of thing, I have never been a big fan of that and
I think the unfortunate release that came out yesterday is
evidence that my view of the law is sound that really it shows
the wisdom of the original system of the FEC where the
Commissioners have to act in a bipartisan manner to avoid one
party essentially targeting the other party.
Senator Roberts. I appreciate that. My time has expired,
Mr. Chairman.
Senator King. Thank you, Senator. Senator Udall. Oh, sorry.
Senator Klobuchar. We look similar.
Senator King. I am awfully sorry. Senator Klobuchar,
welcome to the hearing.
Senator Klobuchar. Thank you very much, Mr. Chairman, and I
had two previous hearings, including the Joint Economic
Committee where I am the Senate Chair. So I apologize for
getting here now, but I think this is an incredibly important
topic. I thank you for holding this hearing. I thank Justice
Stevens for his testimony and his support for a constitutional
amendment. I also thank my colleague here, Senator Udall, for
his work in leading the constitutional amendment, which I am a
co-sponsor.
I am very troubled by the recent Supreme Court decision,
the McCutcheon decision, extending the damage Citizens United
caused in my mind. I looked back. I was cleaning out a back
room in my house in Minnesota last week and found a bunch of
things from my campaign for Hennepin County Attorney, where,
Mr. Chairman, we had a $100 limit on contributions in the off
election years and $500 in the election year.
I literally found letters where we returned $10.00 if
people had gone over the $100 limit. I then thought of my first
days. I found a bunch of stuff from the 2006 Senate campaign
where I knew no one to ask money from nationally. I literally
went through my entire Rolodex and I remember setting the all-
time Senate record of raising $17,000 from ex-boyfriends.
[Laughter.]
Senator Klobuchar. Those days are behind us as we head into
this new era, after the Supreme Court decisions, and I am
incredibly troubled by these decisions when you can have a few
thousand people be able to give hundreds of thousands of
dollars, and I just think it destroys our campaign finance
system.
I guess I will start with you, Mr. Potter. There has been a
lot of discussion about what the real world impact of Citizens
United has been and how McCutcheon will affect it going
forward. Can you describe what trends or major shifts you see
in campaign finance since the Citizens United ruling and how
McCutcheon will impact those trends in the future?
Mr. Potter. Yes, thank you, Senator. Well, I think the
first trend, which was noted in the Chairman's question a
moment ago, is that contrary to what the Supreme Court said in
Citizens United, we are seeing secret spending. The Court's
assumption was that although we would have new sources of
spending, corporations and then unions, that they would be
disclosed and that shareholders and citizens therefore would
know who was speaking, and could evaluate that speech.
That is not what is happening now. Because of the FEC's
position on what has to be disclosed, because of the
proliferation of tax exempt groups that do not disclose their
donors, we have ended up with a parallel avenue of spending in
elections.
Essentially, if someone wants to influence an election
today, if they are being solicited for money, the first
question is, ``well, am I willing to have my spending disclosed
or not?'' And if not, then you look at all of these vehicles
that are available to spend the same money, to run the same
ads, but have it avoid being a matter of public record, so
that----
Senator Klobuchar. Yes. I remember $99.00 contributions in
my $100 race for county attorney, and I know that, but this is
taking it to a whole different level, as you point out, when
there is no disclosure and the effect that will have.
I guess the other question--you took this even a step
further, Mr. Ornstein, when you talked about how the definition
of corruption is so narrow in the Supreme Court case. It says
that we can only regulate donations to prevent actual quid pro
quo bribery. Why do you think this is problematic, and should
we be able to regulate this?
Mr. Ornstein. First of all, let me say that you were a
great Hennepin County Attorney. But beyond that, anybody, I
think, who has been around the political process at all knows
what happens when you have money intersect with power and the
many ways, indirect and otherwise, that you get corrupting
influences.
I have had some of your colleagues tell me, in the
aftermath not just of Citizens United, but what I think was an
equally corrosive decision, Speech Now, that followed it that
created the explosion of the super PACs and in other ways, say
that they are visited by somebody who says, I am representing
Americans for a Better America, and they have got more money
than God and, you know, pouring in $10 million in the final two
weeks of a campaign to destroy somebody, that is easy.
They really want this amendment. I do not know what will
happen if somebody opposes them, but that is the reality, and
they leave. And human beings are going to think, well, it is
one little amendment, or will think, I had better raise $10
million not just what I need for my campaign, but as an
insurance fund just in case because I cannot do that in the
final two weeks of a campaign.
That is just one set of examples. Now in the aftermath of
McCutcheon, I can imagine a bunch of people coming in and
waving checkbooks and saying, each one of us has checks that
can total $3.75 million now that we will give to the hundreds
of committees, the joint fund-raising committees, spread it
around, and, of course, we will have candidates we would
prefer. The notion that this will actually keep the individual
limit is out the window.
We will all write these checks, but there is one little
thing here in the legislative arena that we want in return. You
do not have to say it directly and it will not be on videotape.
This is corrupting. We saw it in the gilded age, and what I
think both Justice Kennedy and Justice Roberts have now done in
these decisions is to open up a new gilded age.
Senator Klobuchar. And you being a political scientist and
not just a campaign expert here understand that one of the
problems is we have had people so polarized, you know, whatever
special interest is to the left or the right, and one of the
things I am worried about as I looked at this McCutcheon
decision, even more than the expenditures decision, is that it
will just play to the poles.
It will make it even harder for people to do things in the
middle where they have to compromise and they have to be able
to kind of go in the face of some of the people from their own
base, from their own party, if they are just going to be
punished in a big way by major donors. Do you think there is
any truth to that?
Mr. Ornstein. I think you get, when it comes to big donors,
maybe four categories of people. There are two that represent
the poles and they are trying to use their money as electoral
magnets to pull people further apart.
Senator Klobuchar. That is a good analogy.
Mr. Ornstein. A third type are those who may not have a
deep ideological interest, but they have pecuniary interests
and they will use money to make money. I, frankly, am surprised
that we do not have more spending by big corporate interests in
Washington because it is the best investment you can make. Put
in, you know, $20 million that goes into funding of campaigns.
Maybe you will get a billion dollar contract out of it. And we
will see more of that now and I think we are heading down a
slippery slope of direct contributions by corporations to
candidates.
And then maybe you have a category of those who are just
looking out for the broader public interest. But I think that
is a much smaller category than the other three.
Senator Klobuchar. I think the last thing I would raise, no
question, and maybe we can go back after you are done, Senator
King, but it is just this issue where even when you are making
a decision as an elected official to do what you consider the
right thing for your state, you know, maybe you have a lot of
employees in a certain area and you think it is very important
or you think it is the right thing for the country.
I think with this lack of trust with all these big
contributions, people still will now look at it, even though
you know in your heart you made the decision for the right
reason, and they look and they see, Oh, but you got money from
these interests. I just think even when you are doing it for
the right reason, it completely breaks down trust from the
public about why you are doing things.
And that is one of the major problems and why I support
this constitutional amendment.
Senator King. Thank you. A couple of follow-up questions.
In listening to this and thinking about these organizations
that essentially are designed to disguise identify, the term
identity laundering comes to mind. I mean, that is what is
really going on here. It is a reverse on the whole idea of
money laundering.
Ms. Ravel, which was essentially exactly what was going on
in your case, where there were donors in California who the
money went to Virginia to Arizona back to California. It was
all about laundering the identity out of that contribution. Is
that not correct?
Ms. Ravel. Yes. Yes, Mr. Chairman. The initial request for
the money in California was, if you want your identity to be
known, you can give directly to a PAC. If you do not want your
identity to be known and you want to remain anonymous, it can
go to this Virginia non-profit.
And so, the money that went to the Virginia non-profit was
specifically for the purpose of not revealing identity and it
was then moved circuitously through all the other non-profits
for the same reason.
Senator King. Thank you, Ms. Ravel. That is exactly the way
it appeared. Mr. Ornstein, one of the situations is, whenever
you try to do something about an issue like this--and by the
way, I really enjoyed this morning sitting literally in the
center between Senator Roberts and Senator Schumer--but when
you try to do something, everybody thinks of it in partisan
terms. Does this advantage my party versus the other party, my
candidate versus the other?
But this data I referred to that came out yesterday
indicates that the gap--the red or the more conservative-
leaning groups, the blue are more liberal groups, and the gap
between them is diminishing significantly. It was 85 or 90
percent conservative back in 2010. As you see here, there is
still a big disproportionate in 2012. But the gap is now 60-40.
Hopefully, both sides are going to realize that this is a
danger. I think this is not a partisan issue to me. I think
this non-disclosed money is a danger to the republic no matter
who it favors one year to the next. As the Old Testament says,
if you sow the wind, you will reap the whirlwind. I am afraid
that people are sort of saying, Okay, right now today this
benefits my party, but next year or the year after that, it
could benefit the other party. That is why I think we need to
make a change like this.
Mr. Ornstein. You know, it is interesting, Mr. Chairman,
that before McCain-Feingold, you really did have a bipartisan
consensus on the need for more disclosure. And indeed, when
Congress was considering, in 2000, requiring more disclosure of
527 groups, we had overwhelming bipartisan majority support it.
One who did not was the Senate Republican leader, Mitch
McConnell, but what Senator McConnell said at the time was he
did not support it because it did not require enough
disclosure, including what he said was a requirement for
disclosure from these non-profit groups, now what we think of
as the 501(c)(4)s.
We have a very different attitude now. It has become more
polarized. And I do not see why disclosure should be a partisan
issue at this point. I do not see why we cannot cut through
that, and I do think that this is something where now that
there are more avenues for money, people who have interests,
and that includes the polar opposites as well on both sides,
are going to start to pour more and more money into it and, in
many cases, they are going to try and hide where that money is
coming from.
One of the things that we have seen is, they will often use
inappropriate vehicles, 501(c)(3)s, the pure non-profits, to
then give grants of money to other groups that can go to other
groups that can go to other groups that finally end up in a
501(c)(4) that does not get disclosed.
There are so many opportunities here to hide identities and
to hide money that how can voters figure out when a message is
coming who is providing that message, which is a requirement of
context, to know whether to believe it.
Senator King. Well, one of the interesting data points in
this new study from Wesleyan is that voters tend to put more
credit to ads that come from these groups than they do from the
candidates, even though they do not know who the groups are.
The groups may be Americans for Greener Grass and voters tend
to think, well, it is not a candidate ad, it must have more
authority, but they do not know who is funding Americans for
Greener Grass. By the way, I am in favor of these ads.
Mr. Ornstein. One of the things as well, we have talked,
and Senator--excuse me--Justice Stevens talked about a level
playing field. One of the things that concerns me is that the
level playing field is moving very much away from the
candidates of both parties and in a host of ways. Candidates
have to raise money in $2,600 increments and groups that now
can spend untold amounts, that can pour it in at the end of a
campaign when a candidate does not have an opportunity to
answer those messages have now, I think, an overweening
influence.
And it is not that that money will necessarily be spent.
The threat of spending, unless something is done, is enough. In
many cases, we will see actions taken by Government behind
closed doors or by changing amendments that nobody will know
about without a dime being spent under these circumstances as
anonymous groups apply that threat. It is not a good way to run
business in a democracy.
Senator King. Mr. Potter, I thought one of the most
interesting moments today was when Senator Cruz said, unlimited
contributions and immediate disclosure. React to that concept.
Mr. Potter. Well, I think there are two different issues
here. One is the idea of full and immediate disclosure, which
is the one Senator Cruz talked about, I believe, in the
context, in fairness to Senator Cruz, in the context of
contributions to candidates. The other is the issue of how much
candidates should be able to accept as contributions, or party
committees which are comprised of candidates, without citizens
thinking that they have been bought.
That has been the debate, really, since certainly Watergate
where you had million-dollar contributions.
Senator King. But if you have full disclosure, the citizens
can make that decision. They can say, look, my candidate took
half a million dollars from XYZ and I do not like that.
Mr. Potter. They can and that is where we were in the early
1970s when there were million-dollar contributions to the Nixon
reelection campaign. The reaction was, something is being sold
or something is being bought for a million dollars. The Supreme
Court in Buckley said, it is not an irrational conclusion. It
is common sense that people will believe that huge
contributions are intended to buy access and influence
legislative results, and that people who take those
contributions are in some way being bought.
So that is why the Court in Buckley said it makes perfectly
good sense to limit the size of contributions to candidates and
party committees because of the perception, the danger and the
perception that there is a transaction.
If you have an unlimited contribution that is fully
disclosed, you still have the million dollars coming in. And
the question, Justice Stevens' question asked is, so what about
people who do not have a million dollars? They just do not get
to buy any access or influence?
That has been the justification for the contribution
limits. The debate has been, what size should they be? The
assumption has been that those contributions will be disclosed,
and as far as we know they are all fully disclosed, but that
the independent expenditures that the Court allowed in the
Buckley decision, which the Court said were not going to be
corrupting because they would be totally, wholly, completely
independent of candidates, would also be fully disclosed.
We have ended up, in a way, with the worst of both worlds,
which is contrary to what the Court said, these expenditures
are not fully disclosed, as we have discussed, or they need not
be. There is an option there. And secondly, they are not
wholly, totally, and completely independent of candidates
either.
The Court's assumption was they cannot be corrupting
because candidates and parties will have nothing to do with
them, but the reality, as we have seen, is that many of these
super PACs are created by former employees of candidates and
close associates of candidates. They are, in many ways, tied to
the candidates.
Candidates have appeared at events for these groups to
thank donors for giving to them so they are not totally, wholly
independent as the Court expected. In that sense, they are not
fulfilling the role that the Court thought they would.
Senator King. We have used the word--and this is a subject
that really has not come up today--we have used the word
perception a number of times. I do not think there is much
question, and polls support this, that this whole money and
politics is part of what is turning off the American people to
the process. It is part of what is undermining the confidence
and trust in the system, which is ultimately what our system
rests upon.
I think that is part of it. It does not have to be a bribe.
It just is unseemly and people realize that. It may be one of
the reasons that our collective approval rating around here is
below al Qaeda. And it just strikes me. There has not been
enough discussion of that, is the underlying distaste for this
whole system that is undermining trust and confidence in our
Government.
Senator Klobuchar, you wanted to follow up?
Senator Klobuchar. Sure. I was just listening to Mr.
Potter, so I am a big fan of transparency, but I do not think
in any way will it solve all the problems because I think what
is going to happen, I want to get it, but it is going to
happen, I know it. Certain people who give in certain states
where maybe their entity or what they have done is not as
unpopular, and then someone else will give money in another
state.
They will just find a way. I think with good disclosure
law, they will have to disclose, but I just do not think it is
going to fix the problem of the trust that Senator King just
talked about, as well as the amount of money that can be spent.
Not just the unseemliness, but it is a thin line between what
is unseemly and what is almost a bribe.
So, Mr. Potter, what do you think? Do you think disclosure
is enough?
Mr. Potter. Well, as you point out, if you get full
disclosure, you now know what is happening. Will people like
what is happening? That is a different question. And it may
well be that full disclosure leads the American public to think
that only a limited number of people are being able to buy
access, that these campaigns cost so much that members have to
spend so much time raising money and they are going to spend it
logically with the people who have money.
So full disclosure does not get you everywhere. Full
disclosure is, I think, a start to a larger discussion of how
we want to finance campaigns.
Senator Klobuchar. So you think it is very possible we need
to do more than just disclosure?
Mr. Potter. Oh, absolutely.
Senator Klobuchar. Okay, good. But I think that your
argument would be that if you have disclosure, then maybe that
will more easily lead to other measures.
Mr. Potter. Right. My concern here, going back to the
McCutcheon decision--is that I think the five Justices in the
Court majority are in a position where they are saying,
Congress, you cannot do more. We have said disclosure is fine,
Internet disclosure, all that is really great, but unless it is
bribery, it is okay.
So this intermediate area that the Chairman talks about,
which is it is unseemly, that it diminishes confidence in
Government, that used to be covered by the, ``appearance of
corruption'', the notion that Congress could legislate, as it
did with soft money, not because there was proof of quid pro
quo bribery with people going to jail, but because of the
unseemliness of six and seven figure contributions, as Mr.
Ornstein says, these were often solicited in terms of join the
Chairman's Club, have a breakfast meeting with the Chairman of
the XYZ Committee.
Congress said, you cannot do that because it is bad for the
institution and it is bad for public confidence in Congress.
And what I worry about is that the five Justices in the Court
majority are saying, too bad, you cannot fix that, and you
cannot regulate that. If it is not actual outright bribery,
Congress cannot prevent that sort of activity. And that seems
to me to be a crisis for this institution in terms of public
confidence.
Senator Klobuchar. Mr. Ornstein.
Mr. Ornstein. Senator Klobuchar, I want to add a couple of
points to this. One is, when we think about corruption, it goes
both ways, and I think one of the problems with removing all
the limits is that the pressure on big donors who can no longer
say with an umbrella of protection, I have maxed out, being
pushed to give more and more.
Or in some instances, as we have seen before, being told
that if they give to the other side, then mayhem will ensue
upon them in the legislative process, is another part of this
that is a very real problem. And then what I would also like to
say, if you will give me permission is, Senator Cruz said none
of these reforms have done anything except increase corruption.
I think it is important to set the record straight in the
sense that, you know, Mr. Potter talked about Watergate and it
led to a law that changed the way presidential campaigns were
funded. And to me, it is just incontrovertibly clear that for
decades after, we changed the presidential system.
So there were voluntary spending limits and there were
public grants. We had a much cleaner and better system. It fell
apart because we did not adjust those numbers and it became
absurd. There was not enough money there. And to be frank,
there was not enough public support for public money in the
campaigns.
Now I think you are absolutely right, Senator King, that--
and we have lots of polls that show it--the sense that the
public believes that all of politics, and particularly in
Washington, is thoroughly corrupt, that citizens do not have
much of a say here, that other interests are prevailing, has a
corrosive impact on the ability of a democracy to function with
legitimacy.
And these two Supreme Court decisions pretty much blithely
push that aside, to me, is a really troubling development.
Senator Klobuchar. And I am convinced that it is not just a
perception issue, which it is, but I think in Minnesota where
we have had some very strong limits at the local and the state
levels--I mentioned the ones I had for county attorney--it made
a difference. It makes a difference in the kind of politics. It
makes a difference in the civility.
It has made a difference in the outcome. It gave us
Governor Jesse Ventura, which is for sure, because we had the
public funds. But it gave the citizens a say and we have the
highest voter turnout in the country nearly every single year,
and a lot of that, I think, is because people can have a better
trust in their Government and they do not see that big money,
at least at the state level.
Speaking of that, Ms. Ravel, you were talking about the
dark money and the Virginia and Arizona in the case that you
worked on. One of the things that has been debated is the
impact of these decisions on foreign entities to be involved in
funding. You know, if you can do this from state to state to
state and it is all hidden, do you think that these decisions
could make it easier for foreign entities to fund United States
elections?
Ms. Ravel. I do not think there is any question about that.
One of the positive things about transparency and disclosure
for all groups, regardless of their tax status or how they are
set up, is that the public will know, or prosecutors could know
whether or not some of the contributions are made illegally,
and that includes foreign money.
Senator Klobuchar. All right. Just last, a trust issue.
Under Federal law, super PACs, as you know, are not allowed to
coordinate with their candidates' campaigns or coordinate
activities. I already see you having a smirk on your face, Mr.
Ornstein.
But there has been a lot of discussion over the fact that
the organizers of some super PACs have had very close ties to
candidates that they have supported. This is on both sides.
What impact do you think this has on the public trust of
Government?
Mr. Ornstein. When you have presumed independence and then
you see big funders standing behind candidates as they give
their speeches, appearing with them at fund-raising efforts,
riding with them on their private planes and sitting right next
to them, and then we have the idea which is infused in Citizens
United, that because they are independent, then these entities
can give as much money as they want and we do not need to worry
about corruption or the appearance of corruption, it is a big
joke, frankly. For that, we have to thank, as I said, not just
Citizens United, but Speech Now.
Senator Klobuchar. Right. Thank you very much.
Senator King. Senator Klobuchar, since you brought up my
independent gubernatorial colleague, Jesse Ventura, I have to--
--
Senator Klobuchar. Is it true that he once asked you to be
his running mate for President?
Senator King. The answer to that is true.
Senator Klobuchar. I just thought we should get that on the
record.
Senator King. If you would like to say no to Jesse, you are
welcome to.
[Laughter.]
Senator King. But it has been attributed to him, I think,
one of the most ingenious suggestions on this issue. He
believes that members of Congress should have to wear jackets
like NASCAR drivers with their sponsors on the jacket. Only
Jesse would come up with an idea as creative as that.
Mr. Ornstein. You would need trench coats, actually.
Senator King. I want to thank all of you on behalf of the
Rules Committee for your important testimony today. I also want
to thank the Center for Responsive Politics and the Wesleyan
Project for their help, as well as Fred Wertheimer at Common
Cause, Dean Olsen, Citizens for Responsibility and Ethics in
Washington who helped develop a lot of the background.
This concludes the second panel for today's hearing. Before
we adjourn, I would like to ask unanimous consent that a
Supreme Court brief written on this subject by Senators McCain
and Whitehouse be included in the record without objection.
[Brief of United States Senators Sheldon Whitehouse and
John McCain as Amici Curiae in Support of Respondents was
submitted for the record:]
Senator King. And also without objection, the hearing
record will remain open for five business days for additional
statements and post-hearing questions submitted in writing for
our witnesses to answer. I want to thank my colleagues for
participating and joining us in this hearing, sharing their
thoughts and comments on this important topic. This hearing of
the Rules Committee of the United States Senate is now
adjourned.
[Whereupon, at 12:04 p.m., the Committee was adjourned.]
APPENDIX MATERIAL SUBMITTED
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[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
HEARING--COLLECTION, ANALYSIS AND USE.
OF ELECTIONS DATA: A MEASURED.
APPROACH TO IMPROVING ELECTION ADMINISTRATION
----------
WEDNESDAY, MAY 14, 2014
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 9:36 a.m., in
Room SR-301, Russell Senate Office Building, Hon. Amy
Klobuchar, presiding.
Present: Senators Klobuchar and Schumer.
Staff Present: Jean Bordewich, Staff Director; Kelly Fado,
Deputy Staff Director; Stacy Ettinger, Chief Counsel; Veronica
Gillespie, Elections Counsel; Ben Hovland, Senior Counsel;
Julia Richardson, Senior Counsel; Abbie Sorrendino, Legislative
Assistant; Phillip Rumsey, Legislative Correspondent; Jeffrey
Johnson, Clerk; Benjamin Grazda, Staff Assistant; Mary Suit
Jones, Republican Staff Director; Shaun Parkin, Republican
Deputy Staff Director; Paul Vinovich, Republican Chief Counsel;
and Rachel Creviston, Republican Senior Professional Staff.
OPENING STATEMENT OF SENATOR KLOBUCHAR
Senator Klobuchar. Welcome to today's hearing of the Rules
Committee. Good morning, everyone.
We are going to be focusing today on the use of data to
improve the administration of elections. I want to thank
Chairman Schumer for calling attention to this very important
issue and for inviting me to chair this hearing.
I also want to acknowledge Staff Director, Jean Bordewich.
Congratulations on your incredible service to this committee,
and we wish you well in your new position, and I know that
Chairman Schumer wanted to say a few words about Jean.
OPENING STATEMENT OF CHAIRMAN SCHUMER
Chairman Schumer. Well, thank you, and first, let me thank
Senator Klobuchar, not only for chairing this hearing, but
being a great member of the Rules Committee and a great member
of the Senate.
And, I want to also welcome Heather Gerken, who was my
daughter's teacher at Yale Law School, and I got to know her
there, so thank you for coming, and all the other witnesses, of
course, too----
[Laughter.]
Chairman Schumer [continuing]. Who did not have the
opportunity to teach my daughter.
[Laughter.]
Chairman Schumer. But, today, I want to take a moment to
recognize and thank one of the Senate's great public servants,
the Staff Director of the Rules Committee, my dear friend, Jean
Parvin Bordewich. Today is Jean's final hearing with the Rules
Committee. She is retiring from the Senate after 20.5 years of
service to the House and to the Senate, but our time goes back
much longer than that.
Jeanie and I met in 1969, when we were both young and
impressionable interns on the Hill. I was interning for a
Republican, New York Senator Charles Goodell, whose son is now
the head of the NFL, but he represented Western New York,
Jamestown. Jeanie was on the House side. She was interning for
Representative Richardson Preyer of North Carolina. We met each
other and almost instantaneously became friends as we learned
our way around Capitol Hill and met people from all over the
country.
Many years later, our paths crossed again. I was running
for the Senate. Jeanie was running for Congress in New York's
Hudson Valley. We saw each other out on the campaign trail and
our friendship picked up right where it left off. While Jeanie
did not win that race, the 22nd District's loss was the
Senate's and my gain.
Shortly into my first term, Jean joined my staff and opened
up the first office in the Hudson Valley that I think a Senator
ever had. It was located in her basement in Red Hook in the
Hudson Valley. Eventually, we let her have her house back.
After seven terrific years, Jean left my staff to become
Chief of Staff to newly elected Congressman John Hall. She led
him to a tough reelection victory, and as soon as she did
that--that was her duty, and Jean is a person of duty--I was
able to convince her to return to the Senate and help me as
Staff Director when I became Chairman of this committee.
Over the past few years, Jeanie has helped guide the Senate
community, assisting countless offices, staffs, and Senators,
Republican and Democrat, in keeping with the grand tradition of
this committee. Probably a week does not go by where a Senator
does not come up to me and say thank you for just arranging
this administrative thing which seemed impossible, and that has
been done by the capable, non-political Rules staff under the
guidance of Jean Bordewich.
Among her most noteworthy achievements was her organization
of the 57th Presidential Inauguration Ceremony. It is a huge
task, but Jean was up to the challenge and everyone said that
the inauguration was one of the best. One of my fondest
memories of Jean is from that inauguration. The sight of my old
friend Jeanie leading President Obama onto the podium as a
billion people watched throughout the world was a sight I will
never forget. She had sure come a long way from our days as
young, impressionable interns.
And now, all good things come to an end, so Jeanie is--you
know, she is always an adventurer. She is always interested in
new things and new ideas. Well, it is time to start another
chapter in her life, and she and her husband, Fergus, who
everyone knows is a very well known, insightful author and a
delightful person, are ready to start a new adventure. She is
retiring from the Senate to go to San Francisco, and I hope
everyone--Jean is just public servant par excellence. When they
used to talk about the British civil service and dedicated
people who would just do the job through thick and thin and
made the British Empire what it was, well, if you had to think
of an American version of that reputed, admired British civil
servant, it would be Jean Bordewich.
She is a dear friend. She is part of our family, and we
will stay friends for life, no matter where she and I end up on
this globe. But, I want to thank her for her service to me, to
this committee, to the Senate, to New York, to our country and
our world. Jeanie, we will miss you.
[Applause.]
Senator Klobuchar. Well, we feel like we should just end
the hearing now.
[Laughter.]
Senator Klobuchar. That was just beautiful. We do not
usually have so much emotion at the Rules Committee. But, I was
thinking as I sat here how I make the segue to the great
stories about Jean's service and her steady hand, and I think a
lot of the work of the Rules Committee is not just making sure
the Senate works and that the inaugurations work, but it is
also making sure our democracy works and that our election
works, and Senator Schumer has taken a particular lead in
looking at these issues.
We had a tremendous hearing last week on campaign finance
and what that means to our democracy and this is really a part
of that work, because, as you all know, earlier this year, the
Bipartisan Presidential Commission on Election Administration
came out with a very important report about how we can do
things like reduce lines at polling places and improve the
experience of people that can vote. When you have 100-year-old
women who have to wait in line for hours, as the President
pointed out at one of his State of the Unions, then we have a
problem.
And, we appreciated the work of both the Bipartisan
Commission put together from the counsel of the Romney campaign
and counsel of the Obama campaign and coming up with some
ideas. And one of the key conclusions of that report was that,
quote, ``despite the fact that elections drown in data,
election administration has largely escaped this data
revolution.'' The private sector has already figured out that
using data to improve performance is the wave of the future.
People going to the polls to exercise their right to vote
deserves no less.
As our witnesses will discuss, collecting and analyzing
data about how we run our elections can help us figure out what
is going wrong and point us toward some cost effective
solutions. Data can help us answer questions about these nuts
and bolts things like, why are the lines so long? Did the Ward
2 polling place have enough workers at 8:00 a.m.? We have over
171,000 precincts across America. How do they do things
differently and how does this affect someone trying to squeeze
in picking the kids up from a soccer practice and getting that
moment in to cast their vote, as is their right?
I have introduced a bill with Senator Tester, the Same Day
Registration Act, which would try to make the voting process
easier by allowing people to register on the same day as they
cast their ballot. And we actually looked at the data when we
introduced this bill and found that in the States that have
some of the highest voter turnout, the vast majority of them,
if you look at the top ten, have the same day registration. And
when you look at the ones at the bottom, none of them have same
day registration.
And, I would point that these are blue States and red
States and purple States and it does not necessarily have to do
with their political bent as much as it has to do with the
States' interest in having election participation and not
limiting people's right to go to the polls.
What have we found from the data? Well, it turns out that
something around 70 percent of people needed to update their
address because they had moved since the last election. They
were already registered, but this change needed to happen
before they could vote. That is something that our State
discovered from the data.
Because we had this information, our State looked at how we
could fix the underlying issue. Just last week, our State
legislature passed a bill that lets the Secretary of State
automatically update voter registration rolls when people move
within our State. We have consistently had one of the highest
turnout rates in the country, and that is why Senator Tester
and I and Congressman Ellison in the House are so devoted to
this idea of same day registration.
With that, we are going to move to our panel of witnesses.
We have, as Senator Schumer noted, Ms. Heather Gerken, the J.
Skelly Wright Professor of Law at Yale Law School and the
author of the book, The Democracy Index.
We also have with us Mr. Charles Stewart, who is a
Distinguished Professor of Political Science at the
Massachusetts Institute of Technology and Co-Director of the
CalTech-MIT Voting Technology Project.
We have Mr. Kevin Kennedy, the Director and General Counsel
at the Wisconsin--that is our neighbor, we do not always like
the Packers--Government Accountability Board--but we will still
have you as a witness.
We have Mr. David Becker, the Director of Election
Initiatives at the Pew Charitable Trusts.
And, my personal favorite, because I was not wearing my
glasses when I came in and saw the name ``Justin Riemer'' and
thought we had Justin Bieber as a witness.
[Laughter.]
Senator Klobuchar. I was wondering why, perhaps, we did not
have more press here----
[Laughter.]
Chairman Schumer. With you, Madam Chair, have a long
history----
Senator Klobuchar [continuing]. Yes, I have a long history
which we do not want to get into right now. If someone is out
there watching this hearing on C-SPAN, he and I had a dispute
about a bill I had.
[Laughter.]
Senator Klobuchar. But, in any case, we have Justin Riemer,
who serves as the Deputy Secretary and the Governor's
Confidential Policy Advisory at the Virginia State Board of
Elections.
I thank you all for joining us today and I would like to
ask each of you to limit your statements to five minutes. If
you have provided the committee with a longer written
statement, without objection, the entire statement will be
entered into the record.
Ms. Gerken, please proceed.
STATEMENT OF HEATHER K. GERKEN, J. SKELLY WRIGHT PROFESSOR OF
LAW, YALE LAW SCHOOL, NEW HAVEN, CONNECTICUT
Ms. Gerken. Senator Schumer, Senator Klobuchar, and members
of the committee, I am a professor of election law and
constitutional law at Yale Law School and I have written
extensively on data-driven management and election
administration. It is an honor to be here to discuss this
important topic, although I will say, two Senators are a hard
act to follow.
We measure what matters. The public and private sectors
routinely collect and analyze data on virtually every aspect of
our lives. As you just pointed out, Senator, data-driven
management is not the ideal anymore, it is the norm, for
corporations and the public sector alike. Good data help us
spot, surface, and solve existing problems. They do not just
allow us to identify policy making priorities, but they help
move the policy making process forward. If you want a democracy
worthy of our storied history, you must have 21st century
management practices, and 21st century management practices
require 21st century data collection.
This hearing could not be more timely, because data
collection is at an inflection point in election
administration. Things have improved in recent years, with a
number of dynamic election administrators and State policy
makers deploying data to identify problems and find solutions.
Thanks to the effort by the public and private sector, most
notably the Election Assistance Commission and the Pew Trusts,
we now have the nation's first Election Performance Index, an
idea I proposed several years ago but believed would take at
least a decade to bring about.
For the first time, we have a baseline to compare State
performance and evaluate the effects of reform over time.
Thanks to the Pew Trusts and the efforts of, actually, many of
the people sitting beside me, that index will provide a crucial
policy making tool going forward.
Nonetheless, election administration still lags behind many
public and private institutions on the data collection front.
We still lack sufficient data on a wide variety of important
issues, including the cost of elections, local performance, and
voter experience. In some instances, the data are being
collected, but they are not collected in a form that is
accessible, let alone one that enables comparisons across
jurisdictions.
The absence of good data handicaps our efforts to fix the
problems we see in the elections process, to anticipate the
problems we do not yet see, and to manage the reform process
going forward. Unless we capitalize on the data collection
efforts of recent years, we will never have an election system
that meets the expectations of the American people.
The Federal Government is uniquely well suited to assist
the States in nascent data collection efforts. The market
variation in State and local election schemes lives up to
Justice Brandeis' aphorism about the laboratories of democracy.
But the laboratories of democracy can only work if someone is
recording the results of the experiments. The Federal
Government can provide what the States cannot supply on their
own, a cost effective, easy to use strategy for collecting,
aggregating, and comparing State and local data.
As a scholar not just of elections but of Federalism, I
know many worry about Federal interference with State policy
making. But here, Congressional action will vindicate rather
than undermine Federalism by making it easier for States to do
their jobs.
All of the States--all of us--benefit from more and better
data on election policy. Without more and better data, we risk
turning the great promise of decentralization, that it can help
us identify and implement better policy, into an empty promise.
Data helps States identify the drivers of performance, pinpoint
the cost effective strategies for solving shared problems, and
decide when the reform gain is not worth the candle.
It would be a terrible waste of time and resources to ask
the already cash-strapped States to move toward 21st century
data collection practices on their own. Local election
administrators are already asked to do too much with too
little. The Federal Government must play its proper role. It
should fund standardized data collection systems to record the
results of the States' non-standardized practices. It should
maintain a clearinghouse for policy makers so that States learn
from one another's best practices and fix their own worst ones.
It should make it easier for States to collect the data that we
need with the limited resources that they have. The Federal
Government can foster the competition and innovation that
Federalism is supposed to produce without intruding on State
policy making.
Thank you for your time, and I look forward to your
questions.
[The prepared statement of Ms. Gerken was submitted for the
record:]
Senator Klobuchar. Thank you very much, Ms. Gerken.
Mr. Stewart.
STATEMENT OF CHARLES STEWART III, KENAN SAHIN DISTINGUISHED
PROFESSOR OF POLITICAL SCIENCE, THE MASSACHUSETTS INSTITUTE OF
TECHNOLOGY, CAMBRIDGE, MASSACHUSETTS
Mr. Stewart. Thank you, Senator Klobuchar. It is an honor
today to be before the committee and to speak about the
collection, analysis, and use of data to improve elections for
all Americans.
I have three points I would like to make today. The first
is, there is a need for a more data-centered approach to making
election policy in the United States. Imagine if we had a
national debate about the state of our educational system
without any reference to measures like graduation rates,
enrollment statistics, student-teacher ratios, or school
budgets. Yet, this is exactly how we often talk about elections
policy in the United States. We struggle to improve access and
security in voting without much, if any, attention to metrics
in many places in this country. Instead, policy gets made based
on anecdote, beliefs that are grounded in sparse facts and
wishful thinking.
Now, the good news is that elections are awash in data, as
you mentioned previously, Senator Klobuchar. There is a growing
network of election officials, academics, and other experts who
are developing a fact-based science of election administration
to parallel similar networks in areas like education, health
care, and law enforcement. A major barrier to approaching
elections policy more scientifically is the continued
uncertainty about the future of the EAC, which alone among
Federal agencies is charged with promoting research and
disseminating best practices in election administration through
its research and clearinghouse mandates.
The second point I would like to make is that the two
Federal data collection efforts related to election
administration in the United States need to be supported and
strengthened. The grand-daddy of all Federal election data
efforts is the Voting and Registration Supplement of the
Current Population Survey, which is conducted after each
Federal election by the Census Bureau. It is the indispensable
source of data that tracks the improvement of elections due to
Federal laws, like the Voting Rights Act and the National Voter
Registration Act.
The second of these Federal election data efforts is the
Election Administration and Voting Survey, or the EAVS, which
is administered by the EAC. The EAVS, which was begun in 2004,
is the only national census of basic information about local
election administration. Because of the EAVS, election
officials, legislators, and the general public are now privy to
statistics about a wide range of facts on topics ranging from
voter registration to the staffing of polling places.
The future of the EAVS remains cloudy, due, again, to the
uncertainty about the EAC's continued existence. Thankfully,
the Commission staff continues to administer the EAVS in the
absence of Commissioners. Still, no important Federal data
gathering program can evolve under these conditions. Whatever
the future of the EAC, the EAVS needs to be protected.
The third and final point is that local governments need
help in converting the mountain of data that is generated in
the conduct of elections into information they can use to
better manage these elections. Addressing problems at the
polling place, such as long lines at the polls, requires that
local election officials have very precise information at their
fingertips. They need to know basic facts, such as the arrival
times of voters at the polls and the amount of time it takes
them to cast ballots. Retailers know that service data like
this is critical for effective management. Why do not all
election officials have access to similar data? A major reason
is that election equipment is rarely set up to produce the
types of reports that would be useful to election officials as
they make their plans to conduct elections.
Two focused Federal actions could help local officials
manage their polling places more precisely. First, the EAC
could fund a small grant program to spur the development of
computer tools to take existing service data and turn it into
information that local officials could use to manage elections
more effectively.
Second, the Federal Government could continue to encourage
the efforts that are underway to develop common data standards
that would allow the seamless sharing of data across different
types of computerized election equipment. One such effort is
being undertaken by a working group under the Voting System
Standards Committee of the IEEE computer society. The work of
groups like this ultimately depends on forward progress in the
EAC's Voluntary Voting System Standards. Without a functioning
EAC, it is impossible to approve new Voluntary Voting System
Standards, and without these standards, the work of creating a
common data format for elections-related data will be slowed
significantly.
So, to conclude, I thank the committee for their time and
for holding hearings on these important topics and I look
forward to your questions.
[The prepared statement of Mr. Stewart was submitted for
the record:]
Senator Klobuchar. Thank you very, very much for your work.
Next, we have Mr. Kennedy.
STATEMENT OF KEVIN J. KENNEDY, DIRECTOR AND GENERAL COUNSEL,
WISCONSIN GOVERNMENT ACCOUNTABILITY BOARD, MADISON, WISCONSIN
Mr. Kennedy. Thank you, Senator Klobuchar. I very much
appreciate the opportunity to provide information to this
committee on the collection, analysis, and use of election
data. It is an honor to be here. This is a subject that State
and local election officials in Wisconsin recognize as an
essential element in conducting elections.
Numbers are what elections are all about. The basic concept
of elections is the person with the most votes wins. There are
some exceptions, as we know, in Presidential elections and the
Electoral College. Rank choice voting also adds some more
complicated math to the process. And, we also know that the
prayer of all election officials involves numbers: ``May your
margins be wide.''
As Wisconsin's chief election officer, I have developed a
mantra when I talk to our local election officials. That is,
``know your numbers.'' Let me give you some numbers related to
Wisconsin.
Wisconsin is, arguably, the most decentralized election
system in the nation. The State administers elections with the
support of 72 counties, and our 1,852 municipalities conduct
each election. About 62 percent of those municipal clerks are
part-time. We have over 6,700 wards, often referred to as
precincts in other States, organized into more than 3,500
reporting units. Those 3,500 reporting units are the data
points that we use in elections.
We do not give county-level results or municipal results.
We give those reporting unit results when we are collecting
data. It helps us identify problems within particular polling
places. For example, working with Charles Stewart in our recent
reporting, we found that our municipal data was accurate, but
within that, we found errors in the polling places where they
were misallocating numbers.
Other numbers in Wisconsin, we have 4.3 million voters. We
have had Election Day registration since 1976. Like Minnesota,
we have learned from those numbers that 80 percent of all of
our voters entered the voter registration system through
Election Day registration. That is an important fact for us to
know. Our numbers are very similar to Minnesota's when it comes
to what happens on Election Day. We know what those numbers
are, and Wisconsin has had a long history of tracking voter
turnout and voter registration numbers.
We also have been, as a result of those numbers, competing
with Minnesota, we are usually first or second in Presidential
voter turnout in every election. A little ahead in Super Bowls.
Senator Klobuchar. Oh, so unnecessary.
[Laughter.]
Senator Klobuchar. You know, my dad wrote a book called,
Will the Vikings Ever Win the Super Bowl, in the, I think,
early 1980s, and sadly, it is still relevant today, but----
[Laughter.]
Mr. Kennedy. Well, my son-in-law will let me know when they
do, I am sure.
[Laughter.]
Mr. Kennedy. Also, with these numbers, we have learned that
Wisconsin, along with Minnesota, routinely performs in the top
five in the Pew Charitable Trusts Performance Index of
Elections.
Wisconsin's long history of data collection has been
amplified by the fact that in 2008, we took our paper-driven
system, where we had our 1,850-plus municipalities giving us
paper data, using a grant from the U.S. Election Assistance
Commission, we took that data and made that electronic. We now
get that data more cost effectively. We no longer have boxes of
paper sitting in our office. Instead, we get that data and this
is something that can easily be replicated across the States.
We use this data for a number of things. In the last
legislative session that just ended, 18 separate pieces of
legislation were introduced. We were able, as a result of that
legislation, to provide clear data analyzing the impact of,
say, reducing the hours of in-person early voting, when those
occurred, so that people could actually measure that. We could
also measure what would be the cost if we eliminated Election
Day registration.
From our experiences collecting and analyzing data, we can
identify several valuable lessons learned. Data collection
should be purpose-driven. With data, more is not necessarily
better. Data collection, audit and analysis requires extensive
resources and time and effort should be spent wisely. It is a
commitment.
Data should be ``smart'' data. It should be simple,
measurable, actionable, relevant and timely. It is also
important that those reporting data clearly understand what you
are asking of them and what they are reporting. This requires
providing training for our local election officials that is
clear, detailed, and easily understood. I cannot emphasize that
enough, given the number of election officials we have.
With that, I will end my testimony. I look forward to
answering questions from the committee.
[The prepared statement of Mr. Kennedy was submitted for
the record:]
Senator Klobuchar. Well, thank you very much.
Next, we have Mr. Becker.
STATEMENT OF DAVID J. BECKER, DIRECTOR, ELECTION INITIATIVES,
THE PEW CHARITABLE TRUSTS, WASHINGTON, D.C.
Mr. Becker. Senator, thank you for the opportunity to be
here today to discuss this important topic.
We at the Pew Charitable Trusts began to look at the issue
of using data to measure performance in the field of election
administration several years ago, partially in response to what
we heard from election officials who felt bombarded by news
stories driven by anecdotes, not data. These stories about long
waiting times to vote, or polling places opening late, or
registration problems are important, but it is never clear
whether they truly represent systemic problems or if they are
simply one-time challenges. We knew that in other policy areas,
such as health and education, there must be a way to use data
and empirical evidence to get a clearer picture of what is
happening across the States.
Following important research by Professor Gerken and many
others in the elections field, Pew partnered with Professor
Stewart and MIT in 2010 to pull together an advisory group of
State and local election officials from around the country, as
well as leading academics in the field of elections and public
administration, to determine what data was available to
accurately and objectively measure the performance in this
field.
In 2013, Pew unveiled the results of this research, the
Elections Performance Index, or EPI, the first comprehensive
assessment of election administration in all 50 States and D.C.
The release introduced the Index's 17 indicators of
performance, including such data relating to wait times at
polling locations, voter registration rates and problems,
military and overseas voting, and mail ballots. This data,
collected from five different data sources, including the
Census and the EAC, provided a baseline of performance using
2008 and 2010 data, giving users a way to evaluate States'
elections side by side.
Pew's latest edition of the Index, released just over a
month ago, adds analysis using data from the 2012 election.
This provides the first opportunity to compare a State's
performance across similar elections, the 2008 and 2012
Presidential contests, and presents a rich picture of the U.S.
democratic process that will be enhanced as new data are added
each election cycle.
The results from the 2012 EPI were generally good news for
the States and for voters, as elections performance improved
overall. Nationally, the overall average improved 4.4
percentage points in 2012 compared with 2008, and the scores of
21 States and the District improved at a rate greater than the
national average.
In addition, we had several findings. First, high
performing States tended to remain high performing, and vice
versa. Most of the highest performing States in 2012, those in
the top 25 percent, including States such as Wisconsin and
Minnesota, were also among the highest performers in 2008 and
2010. The same was true for the lowest performing States in all
three years.
Second, gains were seen in most indicators. Of the 17
indicators, overall national performance improved on 12 of
them, including a decrease in the average wait times to vote
and an increase in the number of States allowing online voter
registration.
Third, wait times decreased, on average, about three
minutes since 2008.
Fourth, although voters turned out at a lower rate in 2012
generally, fewer of those who did not vote said they were
deterred from the polls by illness, disability, or problems
with registration or absentee ballots.
Fifth, 13 States offered convenient and cost effective
online registration in 2012, compared with just two in 2008,
which may have contributed to the reduction in voter
registration problems.
Sixth, more States offered online voter information look-up
tools in 2012.
And, seventh, States are reporting more complete and
accurate data. Eighteen States and the District reported 100
percent complete data in 2012, compared with only seven in
2008.
We present all these data in an interactive report, which
can be found at pewstates.org/EPI, that allows policy makers,
election officials, and citizens to dig through each piece of
information.
We make a series of recommendations in this report, but two
are particularly relevant to this hearing. First, States should
work to upgrade their voter registration systems. By adopting
innovative reforms, such as online voter registration, better
sharing data within a State between motor vehicles agencies, et
cetera, and using a tool like the Electronic Registration
Information Center, or ERIC, to better share voter registration
between States--voter registration data between States, all
recommendations of the Bipartisan Presidential Commission on
Election Administration, States can see a marked improvement in
their performance. For instance, of the bipartisan group of
seven States who founded ERIC in 2012, including Virginia, five
of those States were among the highest performers in that year.
Second, we encourage that States report and collect even
more elections data. Several States, such as Wisconsin, have
pioneered efforts to better collect source data from local
election jurisdictions, but many do not. As the Presidential
Commission notes, if the experience of individual voters is to
improve, the availability and use of data by local
jurisdictions must increase substantially.
And, we continue our work toward this end. Just last week,
we released a report entitled, ``Measuring Motor Voter,'' where
we attempted to rate how well States were providing voters with
the opportunity to register or update their registrations at
motor vehicles offices. What we found was that States'
performance in this area could not be fully measured because
States were not collecting or reporting adequate data to
document the provision of these important services. We,
therefore, made several recommendations, including that States
prioritize, automate, and centralize motor voter data
collection. We went on to highlight several States, such as
Delaware, Michigan, and North Carolina, that have already made
great strides in this area.
Pew continues to see this data-driven approach lead to
higher performance in the States. The EPI is being cited by
policy makers and others in official testimony and is being
used in a geographically and politically diverse group of
States to help reform policy and technology in election
administration. We will continue this work as we look forward
to publishing the 2014 edition of the Index and ensuring the
data-driven performance measurement is enshrined in this field
for years to come.
Thank you.
[The prepared statement of Mr. Becker was submitted for the
record:]
Senator Klobuchar. Thank you very much.
Mr. Riemer.
STATEMENT OF JUSTIN RIEMER, FORMER DEPUTY SECRETARY, VIRGINIA
STATE BOARD OF ELECTIONS, RICHMOND, VIRGINIA
Mr. Riemer. Senator, thank you for the opportunity to
address you today regarding data in elections. I am a former
Virginia election official and co-author and editor of a recent
report from the Republican National Lawyers Association
reviewing the Presidential Commission on Election
Administration's report and providing additional suggestions to
improve election administration.
I would first like to discuss issues pertaining to ranking
State election performance, then to offer a few reasons why we
have such challenges in obtaining good data, and, finally, to
express concerns regarding how ever-increasing election data
and records requests have become an administrative burden on
local election officials.
Using data to rank States' performance has value to
identify both deficiencies and best practices, but there are
also concerns. First is a worry that graders will penalize
States for not adopting policies, such as expanded early
voting, vote by mail, and election day registration. The RNLA,
many nonpartisan election officials, and other stakeholders,
have significant policy reservations regarding these issues and
they should not be included as indicators of performance.
Similarly, graders should reward, not penalize, States for
implementing voter integrity measures, such as reasonable voter
ID requirements and enhanced voter registration list
maintenance activities. Election officials and organizations
with particular concern for the integrity of our elections will
be more likely to embrace these performance indexing efforts if
they recognize State efforts to prevent fraud.
Second, I would like to discuss a few of the many
challenges election officials have when gathering and reporting
election data. The first lies in limitations with State voter
registration databases, and second is a difficulty in
collecting accurate data from the polling place.
Statewide election databases, created as a result of
requirements in the Help America Vote Act, suffered from many
problems commonly associated with large government IT projects.
In the scramble to meet implementation deadlines, building in
adequate data reporting and analytics capabilities became a
secondary concern to complying with the specific database
requirements outlined in HAVA.
In Virginia's case, it was impossible to reverse-engineer
the system after it was launched to add better data collecting
and reporting capabilities. While HAVA's database requirements
mostly address voter registration functions, many States design
these systems to be much more comprehensive. For example,
Virginia's database administers most of the electoral functions
at the State and local levels, including absentee voting, voter
registration, and data collected at the polling place on
election day, and part of the system's job is to gather data
related to those processes. Consequently, these database
limitations impact a broad array of a State's electoral
functions and make it difficult for officials to provide the
data sought by the EAC and other interested parties.
A second challenge is that much of the data used to analyze
elections is collected on election day by poll workers who
receive minimal training, work only a few days out of the year,
and are paid very little. Poll workers must complete a
significant amount of complex paperwork after a long day and
frequently make mistakes or omit important information on
forms. This information is often impossible to correct or
collect later if not captured properly on election night. Poll
workers also, understandably, treat supplemental data reporting
as a secondary priority to reporting precinct vote totals and
ensuring the security of ballots, voting equipment, and other
important election materials.
Fortunately, State and local officials are gradually
overcoming some of these hurdles. First, States have improved
their databases and analytics capabilities. In addition, the
adoption of electronic poll books at the polling place will
result in better data collection on election day. The
nationwide trend towards online voter registration and
electronically sending registration applications completed at
DMVs to registration officials will also help improve the
quality of voter registration records. Multi-State data sharing
programs, like the Interstate Voter Registration Cross Check
and ERIC, are also further helping improve the quality of
States' voter registration data.
The PCEA and RNLA endorse these reforms, and RNLA also
recommends that States pair electronic poll books with ID card
bar code scanners to improve the reliability of voter history
data.
A final issue for policy makers to consider is how
increasing demands for data and records impose significant
administrative burdens on election officials. Survey
obligations from the EAC, Federal Voting Assistance Program,
and other stakeholders are tedious, but manageable. However,
adding an increased request from FOIAs, State and local
governments, litigation, and a public records disclosure
provision in the National Voter Registration Act have turned
basic data and records reporting obligations into a significant
administrative burden. Combined with an increasingly shorter
election off-season, because of 45-day absentee ballot mailing
deadlines and expanded early voting, these obligations make it
more difficult for election officials to perform their core job
functions and make improvements to their election processes.
Thank you for the opportunity to appear before this
committee.
[The prepared statement of Mr. Riemer was submitted for the
record:]
Senator Klobuchar. Thank you very much to all of you.
I will start with you, Ms. Gerken. I know you have made the
point that it is hard for us to really take advantage of the
States as the laboratories of democracy, as you noted, if we
cannot figure out the way to compare what they are doing. And,
States and localities have a big role to play in actually
carrying out our elections, but that makes it harder to have
uniform data. So, I figure we need to make sure we are not
comparing apples and oranges and that we are actually trying to
compare things in the right way to figure out how we make the
voting experience better and how we get more people to vote.
What do you think the Federal Government's role is in improving
election administration, and what should Congress be doing to
increase the supply of quality data while respecting our State
and local partners who carry out the election?
Ms. Gerken. There are many things that the Federal
Government should do, in my view, and I will just begin by
agreeing with Professor Stewart that one of the most important
things is to support current ongoing efforts to provide data
from the States, which is done through the Elections Assistance
Commission. The Elections Assistance Commission has a somewhat
inconsistent reputation among election administrators. However,
I think there is little question that----
Senator Klobuchar. Why is that?
Ms. Gerken [continuing]. Because I think that there has
been some frustration with the way that it is administered,
both its grants and its surveys. While those criticisms are
well taken, the importance of the EAC survey cannot be
underestimated. It is the best set of data we have on a variety
of practices. The EAC has also done something very useful,
which is to help us standardize what kinds of terminology are
used, so we are comparing apples and apples rather than apples
and oranges.
As Professor Stewart has mentioned, I think there are many
other ways that the Federal Government can be supportive here.
Some of them are as simple as assisting the States through
modest funding to figure out how to get the data that they do
have and put it in an accessible form that everyone can share.
I would also love to see more work on the costs of
administering elections. One of the things one begins to
believe in working in these areas is that there will be no
reform unless Almighty God comes down to dictate it. But
sometimes the almighty dollar does the trick. One of the real
reasons why we have seen such a push for online registration
has been the immense cost savings that come from it. Having
data on those kinds of questions is extremely important to the
States in helping do their job----
Senator Klobuchar. You mean how much money it saves to do
the online?
Ms. Gerken [continuing]. Exactly. It is not only more
accurate, but it turns out to be much more efficient in terms
of cost. So, having just that kind of information in no way
intrudes on State policy making, but enables them to make
better decisions going forward.
Senator Klobuchar. Okay. Why do we not move on to the
online, since you brought that up, and whether a State allows
online registration is one of the 17 factors included in the
Index. Why do you think--I will start with you, Mr. Stewart,
and maybe Mr. Becker--why do you think this is a good thing to
do online registration, and how do you think we get the other
States to adopt it?
Mr. Stewart. Well, maybe I can say why this is a good thing
and Mr. Becker probably has some well thought out ideas about
getting States to adopt it.
I think there are two good things about online
registration. One, picking up from what Professor Gerken said,
is the cost. The second, as well, is accuracy. I think we all
wish to see more accurate voter rolls. It is easier for voters.
More accurate rolls dispel many concerns about fraud and can
help us to hone in on where there are, in fact, problems with
people coming and trying to vote who should not.
So there is the accuracy side and the cost side, and I know
Mr. Becker has thought a lot about getting States to say yes.
Senator Klobuchar. Mr. Becker.
Mr. Becker. Yes, that is right. We just put out a brief on
this in January called ``Understanding Online Voter
Registration,'' which can be found at pewstates.org/OVR. And,
what we found in our research in this field over many years is
that online voter registration is one of those rare win-wins in
government. It saves money and it produces a better product by
making voter registration more complete, more accurate, and
more convenient.
So, for instance, with regard to costs, every State that
has kept data on this has found tremendous cost savings,
ranging----
Senator Klobuchar. Now, maybe you told me this in your
testimony, Mr. Becker----
Mr. Becker. Yes----
Senator Klobuchar [continuing]. But do we know how many
States are doing it?
Mr. Becker [continuing]. So, by our count, we show 19
States that are currently offering their citizens an
opportunity to register to vote online without ever having to
print, mail, or----
Senator Klobuchar. And, how long has it been going on?
Mr. Becker [continuing]. Since 2002. Arizona was the first
State, but it took six years until the second State offered
online voter registration, Washington in 2008. They were the
only two States that offered it in 2008. That number went up to
13 in 2012, and now it is up to----
Senator Klobuchar. Okay. You really know these numbers,
so----
[Laughter.]
Senator Klobuchar [continuing]. Let us continue on. It went
up to 13 when?
Mr. Becker. It went to 13 in 2008, and now there are 19
States, almost 100 million Americans who currently can complete
a voter registration application entirely online, without ever
having to handle a piece of paper in any way or mail anything
in. And, this is leading to huge cost savings. States are
seeing cost savings ranging from about 70 to 80 cents in States
like Colorado, Arizona, to over $2 per registration transaction
in a State like California. California----
Senator Klobuchar. And they still make the mail available
for people that do not have----
Mr. Becker [continuing]. Absolutely.
Senator Klobuchar [continuing]. And, what is the resistance
in some of the States?
Mr. Becker. I do not think we are really seeing much real
resistance.
Senator Klobuchar. It is just----
Mr. Becker. I think it is just a matter of time. There is a
capital expenditure that is needed to put it in place. Our
research indicates that, on average, it costs about $240,000,
which is not very much, to install an online voter registration
system. But, still, some States are working towards that end.
But, we are going to see many more States. I think, easily,
half the States will be offering it, if not many more, by the
2016----
Senator Klobuchar [continuing]. And, have you been able to
show direct correlation with increasing voting?
Mr. Becker [continuing]. I do not think we have been able
to see that online voter registration directly leads to
turnout. We have not had a controlled experiment in that
regard. What we do know about online voter registration is it
transfers a lot of the not cost effective and not convenient
paper activity that would ordinarily occur that can lead to
duplicates and errors to electronic activity, which is much
more convenient and cost effective. So, at a minimum, it is
saving election offices a lot of money and leading to a lot
more convenience for the voters.
Senator Klobuchar. Very good. Anyone else want to comment
on that? Do you have that in Wisconsin yet?
Mr. Kennedy. We do not have that in Wisconsin.
Senator Klobuchar. Ah, that is why I asked that question.
[Laughter.]
Mr. Kennedy. I know that Minnesota just did. I will tell
you that Wisconsin has done a cost-benefit analysis on this. We
partnered with our University of Wisconsin La Follette School
of Public Policy and have determined that, if properly
implemented, we will save over a million dollars, most of that
at the local level, where it is really effective. It is the
cost of that. So, Wisconsin has been using our data for things
like that.
Senator Klobuchar. Mm-hmm.
Mr. Kennedy. We had a hearing on that two weeks ago and
that data was prominent.
Senator Klobuchar. And, you have same day?
Mr. Kennedy. We have Election Day registration.
Senator Klobuchar. Yes. I think that is probably why--
probably, in States like ours that--while I think it is a good
thing, it maybe matters a little less when we already have the
higher--you will not see quite the dramatic increase because of
the fact that people can always register.
Mr. Kennedy. No, and it is not really a question--turnout
is driven by so many other things, but one of the things I
always emphasize is that we talk about numbers. We talk about
election administration. Ultimately, it is all about the voter,
and certainly, online registration, which is one thing that was
not mentioned, provides a service to the voter. It makes it
convenient.
This is why Election Day registration has worked very well
in Minnesota and Wisconsin, because we find it serves the
voter. It provides them convenience. They are not thinking
about elections every day. They are thinking about it when the
elections come around. That means being prepared. So, online
registration fits in very well with that. It is a nice pairing
with Election Day registration.
Senator Klobuchar. Mr. Riemer, what do you think about the
electronic registration?
Mr. Riemer. Well, Senator, Virginia implemented online
voter registration approximately a year ago. It was passed with
broad bipartisan support and it is very popular. The voters
love it. The local election officials love it and the State
Board of Elections, the State election officials love it, as
well. It works well, and for all the reasons described.
Senator Klobuchar. Okay. Good. A different topic, now. Ms.
Gerken, I was interested in your testimony about using the
Census as a model for comprehensive gathering of information on
election administration. You advocated for some basic
information to be gathered nationwide, but with a deeper dive
into some randomly selected polling places. Can you elaborate
on how this system would work and the challenges it would face.
Having been at hearings, I think it was with the Joint Economic
Committee, about the Census and some of the political things
that surround it--whether true or not--we all know it is very
important and many of us are always working to protect the
Census and making sure it continues. Let me hear what you think
we could do to make it even better, and then try to put on my
political hat and figure out if we could get it done.
Ms. Gerken. Sure. The analogy to the Census was simply that
the Census has a very widely known strategy for getting
information. It asks for a little bit of information from
everyone, and then a lot of information from a few people, and
in doing so is able to get at the kinds of things we need to
know.
This strikes me as a particularly good model for local
elections. One of the things that you learn very quickly
whenever you talk to Secretaries of State is that they all know
of one or two localities that really are outliers within the
State. They all are nervous that those outliers are going to
make the State the next Florida 2000, or the next Ohio in 2004,
but they have very little ability to influence what is going on
there because, one, they do not have data, and two, they do not
actually have much by way of regulatory authority over
localities. In many places, localities are very powerful.
Having more and better information on the variation within
localities is just as important as it is to have information
about variation among the States for the same kinds of reasons.
The trouble is, and here, I agree entirely with Mr. Riemer,
localities are strapped and they are often staffed by people
who work part-time, or who run the elections and run many other
things in their towns, so you cannot ask them to do the kind of
sophisticated data drops that you can ask from State officials.
That is why the Census is a nice model, to get a little
information from all of them and then have more and better in-
depth information from a number so we can learn how things are
going.
And, the last thing I will say on this----
Senator Klobuchar. I am not an expert on the Census, so,
this would be, like, additional questions you would add on,
or----
Ms. Gerken. It would be like a short form and a long form.
I do not know if you have ever gotten the long form. It takes a
while to fill out.
Senator Klobuchar. Oh, yes.
Ms. Gerken. But, the other thing I actually just added, and
again, I will agree----
Senator Klobuchar. And so in the long form, they sometimes
add different questions.
Ms. Gerken. Yes, a lot of different questions. Exactly.
Senator Klobuchar. So, this would be something, and this
would be to supplement what we are getting from the Election
Administration and Voting Survey?
Ms. Gerken. Exactly. If you randomly selected localities,
it would help us glean information about the variation among
them.
And, the last thing I will just say is I agree with Mr.
Riemer that one of the great dilemmas of election
administration is that a lot of the data comes from poll
workers who are part-time and not always well trained. Here, I
think the way to think about that problem is to think about it
in exactly the way that Burger King and McDonald's think about
that problem. If I remember from high school, the pimply faced
16-year-olds that used to work behind the counter there were
not sophisticated data collectors, and yet they were part of a
sophisticated data collection system that was adapted to their
abilities. And so anything that the Federal Government can do
to help us think about how to get information from poll workers
without having to train them or to expect more than we can
expect from them would be very useful.
Senator Klobuchar. Very good.
Mr. Stewart, do you think this Census idea is a good one,
or do you think there is more we should be doing with the
Election Administration and Voting Survey?
Mr. Stewart. As you can tell from my testimony, I am a big
EAVS fan. I would emphasize assisting the States that are
currently not reporting and complying with the EAVS data
requests to actually report the data that they need to report.
So, that is one thought.
The other thing, I think that you hear a lot of agreement
on this panel--is that diving deeply into precincts and
localities requires the creation of a technology that allows
relatively untrained and unsophisticated poll workers to gather
the data that is needed. That is why things like electronic
poll books are very promising, because you can automate a lot
of this data gathering. If you could automate a lot of data
gathering in electronic poll books, in the voting equipment
that is used, then county officials or State officials who have
the capability to aggregate data could become more involved.
So, I would push a bit more on the technology side and on
encouraging States to report the EAVS data. It seems to me if
Wisconsin can do it, and Mr. Kennedy and his folks are my data
heroes in this regard, I think any State can do it.
Senator Klobuchar. Very good. And, so, this is an example
where you got some funding, Mr. Kennedy, from the Election
Assistance Commission, a $2 million grant. So, how did you use
that money?
Mr. Kennedy. Basically, because Wisconsin already was
committed to collecting certain data, we wanted to get it as
granular as possible, and we recognized when we applied for the
grant we could go from municipality-based reporting right down
to the reporting unit. You know, Milwaukee has 202 polling
places, but there are 324 separate reporting units, and knowing
how each of those wards collects that data.
So, what we did is provide a portal where that data can be
easily entered. We are using the polling place data. And what
we learned is it is training. Now, we did start out with a
bribe. The first time around, we paid every municipal clerk
$100----
Senator Klobuchar. Now, not everyone in elections wants to
use the word ``bribe.''
[Laughter.]
Mr. Kennedy. I understand. I understand.
Senator Klobuchar. We are in a small room.
Mr. Kennedy. It was an incentive.
Senator Klobuchar. There is not a lot of media here, but
I----
[Laughter.]
Mr. Kennedy. It was an inducement or incentive----
Senator Klobuchar. An inducement. An incentive.
Mr. Kennedy [continuing]. To get them to do this.
Senator Klobuchar. Uh-huh.
Mr. Kennedy. And I think it is important to find some way
to convince election officials why this is important. In 2011
and 2012, Wisconsin got a lot of attention because we had a
number of recall elections. We had 16 separate recalls.
Senator Klobuchar. I remember hearing about those.
Mr. Kennedy. Yes. And one of the big policy debates was, if
we are going to have a Statewide recall, what is that going to
cost? And it landed in 2012. We did some surveying to estimate
that, and then, based on that surveying, we built a data
collection cost tool with a lot of give and take with the
municipalities. We were able to demonstrate that the $37
million that we spent on administering elections at the county
and municipal level in 2012, 14 million of that was directly
related to the 2012 recall elections, money that was not
budgeted for. That provided good information for the governing
bodies that had to support this, you know, why did the costs go
up? Where did they come from?
Senator Klobuchar. Another issue that we talked about or
touched on with the long line issue--and who was giving me the
numbers, was it you, Mr. Becker, on the decreasing--that there
was some decrease in three minutes per voter, was that what it
is, from the last Presidential--was it from 2008 to 2012?
Mr. Becker. That is right, from 2008 to 2012, three
minutes----
Senator Klobuchar. So, then, how is the--what is the total
wait? What is the----
Mr. Becker [continuing]. Right now, it is at 11 minutes, on
average, nationally.
Senator Klobuchar [continuing]. So, what we are dealing
here with--because I think most people think they can wait ten
minutes--so, what we are dealing with here is the fact that
there are some--would it be, in Ms. Gerken's words, outliers of
some areas that have really bad problems that we have to try to
get at?
Mr. Becker. Well, of course, that is one of the reasons
that the work of people like Professor Stewart is so important
and why we hope the Index can be helpful, is that it is
important to assess this not based on just the anecdotes of all
the cable news stations outside that one polling place in Miami
at 2:00 a.m. on election night, but to really see what is going
on all across the country, because the cable news stations are
not camped out at polling places in other States looking at
what is happening.
So, what we found was, in fact, yes, Florida was the worst
reported wait times, of around 45 minutes in 2012. Many States
saw wait times of below ten minutes. The Presidential
Commission, I believe, came to the----
Senator Klobuchar. The average in Florida was not 45, was
it?
Mr. Becker [continuing]. I am sorry?
Senator Klobuchar. Was the average in Florida 45----
Mr. Becker. That was the average reported wait time of
those that were surveyed on this issue.
Senator Klobuchar [continuing]. So, would that mean across
polling places in Florida?
Mr. Becker. Yes, across the State, across polling places--
--
Senator Klobuchar. That seems like a real problem----
Mr. Becker [continuing]. In a survey conducted by Professor
Stewart.
Senator Klobuchar [continuing]. And that would seem like a
deterrent to getting people to vote.
Mr. Becker. It is probably not a good thing. I think
election officials in Florida would be the first to say that.
They did see an increase in their reported wait times. The
Presidential Commission came to the conclusion in their
research that about--that under 30 minutes was the target. I
think that was a reasonable conclusion. And, I think States
getting that data is very important to them, because once they
can assess the depth of the problem, they can start looking at
ways to try to correct that problem.
Senator Klobuchar. Yes.
Mr. Becker. One of the conclusions we consistently reach is
that having inaccurate voter rolls is one of the key things
that can drive lines, that can lead to delays at the polling
place and cause a logjam when people are trying to get their
ballot and cast their ballot. So, States that are seeing
improvements in that area are seeing lower lines--smaller
lines.
Senator Klobuchar. And this would be because of technology,
they are seeing improvements? This is the voting roll issue?
What do you think, Mr. Stewart?
Mr. Stewart. Well, part of it is technology, in terms of
shorter lines. Part of it is technology. Part of it is also
that some States and localities are becoming more sophisticated
in using data to move resources around. I mentioned in my
testimony the field of industrial engineering, which does these
things. Some of the larger jurisdictions are able to put some
brainpower behind optimizing where their resources go.
It is also the case, that States are beginning to
experiment with moving some voters off of election day into the
early voting period. One of the things that does is take some
of the pressure off of election day voting. Little bits and
pieces here and there can take pressure off and can reduce
lines.
Senator Klobuchar. So, you know, I used to administer--
prosecute the cases for eight years of any voting issues that
came out of our county in Minnesota. We had the biggest county.
It was over a million people and was an urban county, but also
had 45 suburbs. And we had a Secretary of State who was pretty
aggressive at the time, and so I was very careful that we would
look at every case that came our way. And so I have actually
had this on-the-ground experience with this.
We would have, at first, hundreds of cases that looked like
they were a problem, and I had a full-time investigator--I do
not know why we--but this was my job--that would look at these
cases, and 80 percent of them were father and sons that had the
same name and so they were not voting fraud. Then we would have
a number of ones where felons would still be on probation and
they would actually, I think, be either gotten some wrong
information or just not understood that they were still on
probation, and those were sort of sad cases, because then we
would prosecute these felons on probation for voting. They
would attempt to, then not be allowed to vote the next time,
and then would be restored or something like that.
But, there were not that many of those cases, and so that
is going to be one of my questions, because I am wondering if
with this online--and, I know States have different rules--if
we could do a better job of taking care of that, because a lot
of times, they just did not quite understand. They were still
on probation. Minnesota puts tons of people on probation. We
use less prison time.
And then the second one, which I will just tell you for
your own amusement, my investigator called a guy and said,
``Sir, it looked like you voted twice,'' and the guy goes,
``Yeah, I did.'' And the investigator goes, ``Well, sir, do you
mind if I turn on my tape recorder here so I can get your
story,'' because we had to legally do that, and the guy goes,
``No, no, I will just write you a letter, because I live in
Minneapolis and it is so hard for a Republican to get elected,
I just decided to vote twice.''
[Laughter.]
Senator Klobuchar. So, the guy wrote him a letter and went
on and on about how he had voted twice, and then we had to
issue some kind of a complaint, and then he was much more
sheepish when he came in, and I think he was banned from voting
one more time.
But, we had a few of those type of cases, but they were
very, very rare. And what bothers me, having looked at this,
like, around the five years, having been in a State that had
this dramatic recount in the Franken-Coleman race, that we did
have some issues with felons voting, there is no doubt, but a
lot of it, from my view, was mistakes. It was not some
intentional thing, both on the election administrator side and
on the felon side.
And then the ones that actually deliberately voted twice,
like the person who--this was another one I had--the school
board line goes through their house, and the husband and wife
decided that they are going to vote in both elections because
they wanted to vote in both school board races, but then did
not really realize that they were then actually also voting
double, and they would each vote on each race for President.
And then when we told them we had to do research for them,
because they wanted to know where they should vote when the
line goes through your house, we said, well, you vote where you
sleep, and then they called back and said, well, what if we say
we sleep in separate rooms?
[Laughter.]
Senator Klobuchar. That was the level of detail we got to
with them.
[Laughter.]
Senator Klobuchar. Those cases, where someone actually
votes twice, either for some crazy reason, because a line is
going through their house and they do not understand it, or
because their mom fills out the form and then they then vote--
they voted by mail, and then they vote again--were very rare.
And what bothers me is that a lot of our election laws and
these reasons that we are not talking about today, about some
of the things that ban people from voting or do not allow them
to register to vote, we have so used one or two examples of
these when the vast majority of them, to me, could most likely
be solved by data, especially some of the felon information, so
we get that straight.
And I just wondered if you think that this technology could
help us to ferret through what is clearly mistakes in most of
the cases, as opposed to this guy who was intentionally voting
twice, which is such a rarity. So, a lot of times, it might
involve mental illness when people do it. But, the point is, it
is a rarity, and so, yes, it is used as the defining reason why
we have to have all these strict registration laws and why it
makes it so hard so people cannot same day register like they
do in Minnesota and Wisconsin, which, by the way, produces very
different results, as you know, Mr. Kennedy, in our Governors'
political parties, in our legislators' political parties, and
yet we make it easy for people to vote.
So, if you could just address this, if there is some way we
could get at this online with some of this technology to make
it not even--not just the voting experience better, but also to
make it so that we have a defense, almost, against some of
these claims so that we do not keep limiting people's ability
to register and make it easier for them to sign up. Does anyone
want to go for that one?
Mr. Kennedy. I could mention that in Wisconsin, we have
similar rules in terms of felon voting, and there has always
been an issue about what is the extent of voter fraud, and most
of the cases that we have identified, I mean, the technology
that has been put in place since 2006 with our Statewide voter
registration system, we have identified those rare cases of
double voting. Usually, it is because they own property in two
places and want to vote because they pay taxes and it is a
conscious decision, or they have just moved, and again, very
rare. But, mostly, it is the felons, and so we have--we do----
Senator Klobuchar. And you understand what I mean about
that they are on probation, but it is not clear. Like, they
really do not want to commit another felony by voting, most
likely.
Mr. Kennedy [continuing]. Well, using those numbers, we
have built in a couple of checks. We have Election Day
registration, at the polling place we have access to a list of
all the felons in that municipality or county, depending on the
size, so it can be double-checked so that people can be
advised.
I mean, the best anecdote was someone who came in to vote
who was on the felon list, was not eligible. The person said,
``Oh, one more thing I cannot do,'' once the poll worker said,
``I am sorry, we cannot let you vote because of this.'' But,
the technology was there. It was available. I think that is
very helpful.
But, it also allowed us to build some checks into the
process so that when the person is sentenced, part of the
instructions the judge gives is, you will not be allowed to
vote until you complete the terms of your sentence. When they
are released from incarceration, they get the same information,
and they also sign paperwork. So, we use that----
Senator Klobuchar. Now, some States, when they get released
from incarceration, then they just get to vote, I think, right?
Or, can they vote while they are on probation? I mean, that is
the other way to think about it.
Mr. Kennedy [continuing]. A few States can do that, but the
general norm is you have to complete the terms and get off
paper, as they say.
Senator Klobuchar. Right. Exactly. And, I think that is
what creates that confusion. If someone has been in prison,
they get out and they think they can vote then, like everyone
else, even though they may have been--so, I am just trying to
find a way to double-check this so they do not get in trouble
and so it does not create this aura about our elections.
Mr. Kennedy. And it is something that, by matching the data
with the Corrections Department, you can have that so that they
are flagged in the voter registration list. As I said,
Wisconsin produces lists that we make available for the clerks
to download that give that information.
Senator Klobuchar. Does anyone want to add to that?
Mr. Becker. I would just add that I think you are
absolutely right. Technology is important in two very key
areas. First, it can help ensure that all eligible voters, but
only eligible voters, have access to the process, using things
like e-Poll books to ensure that people do not sign on the
wrong line in a paper poll book, which can lead to these
problems. Things like online voter registration, which can
actually walk someone through the voter registration process,
require that they affirmatively click on and check a box that
clearly describes what the eligibility requirements are before
they proceed, and as you pointed out, often accidentally come
into a violation of the law. Things like ERIC, which can help
whittle down the number of people that might be reached out to
that should not be--that are not eligible to vote and should
not be encouraged to register. Doing that, all these things can
help ensure that all eligible, but only eligible, can take
part.
And, I think a very important thing that technology can
also do is ensure that we correct some of the data collection
problems that we currently experience. So much of data
collection right now is done after the election, where local
election officials have to reconstruct the election after the
fact, report up to the State election officials, who then
report that to the Election Assistance Commission, often
without many checks in between in each of those processes. So,
the data often is not of high quality. We have to go through
and reconnect with all of the States and many of the localities
to ensure that the data is correct and up to date.
And what we see with technology now is there are systems
put in place--election management systems, e-Poll books, et
cetera--that can be designed at the start with collection of
data in mind. So, the data is collected as it is ongoing and
you can just push a button and report it out after the fact. I
think Wisconsin has done some tremendous things in that regard.
Senator Klobuchar. You know what I love about this data
collection is that you can then get the information out there
and then it creates incentives--as opposed to bribes, Mr.
Kennedy----
[Laughter.]
Senator Klobuchar. It creates incentives for States,
because they want to compete with each other. And, I just think
about when we talked to our electric companies, one of the
things they found is the best way to get people to turn down
the heat and save electricity--it is so interesting--it is not,
oh, it is good for the environment. It is not, oh, you can even
save money, and showing them how much money they save. It is
showing what an unknown neighbor saves in a similarly sized
house. And then they see that and they think, well, why am I
not saving that much?
And with elected officials, of course, it is much more
public, so that if you have a State, like your story of
Florida, where the lines are so much longer than other places
and you can get that data out, it creates incentives for the
citizenry to start asking their elected officials, what are you
going to do to improve this? This is outrageous.
So, when I hear this, in a very marketplace way, Mr.
Riemer, I am thinking that there is a huge advantage to getting
this data out, just to create the incentives so the States can
change their processes. But, if we do not get the data out, we
are just putting our heads in the sand and hiding.
So, I assume most of you agree with that, but, so, what do
you think is the best thing we can do? I know--if we could go
down the line here, from the Federal Government perspective. It
is keeping on funding the Voter Survey. Is it also expanding
into Census, from your line, Ms. Gerken, from your perspective,
or what can we be doing?
Ms. Gerken. Well, I have already given a little bit of my
spiel on this one, but the one thing I will add is just to
build on the point that you made. It is remarkable how much the
right to vote is protected by a well-run bureaucracy that
believes in best practices.
Senator Klobuchar. Yes.
Ms. Gerken. And one of the things you quickly learn about
election administration is that it does not have yet the sense
of robust professional practices the way, for example, lawyers
or doctors or accountants do. Anything that the Federal
Government can do to support that--and that means something as
simple as providing a clearinghouse with a menu of options for
different States, because States do look to one another in
trying to figure out what they do. The peer pressure that you
described works as well for States and institutions as it does
for teenagers, and as a result, they will look to each other.
Giving them an accessible, easy to use system where they
can see what other States are doing to solve the same problems
is very, very useful. That is something the Election Assistance
Commission is all but built to do. It is nonpartisan. It does
not interfere with States' decision making. It just helps them
make better decisions. And so I would certainly encourage the
Federal Government to do that, as well.
Senator Klobuchar. Mr. Stewart.
Mr. Stewart. Much of the same record. The clearinghouse and
research function of the EAC are invaluable, and that is really
the core of the EAC. They do this one big election data
gathering effort and they fund basic research. I think if that
core can be maintained and developed, that would be a----
Senator Klobuchar. How about getting the research out
there? So, you get the research. So, I am finding this out for
the first time. I kind of watch the news, read things probably
more than a lot of people, very aware of the States that are at
the top for voting. And, I even gave, like, an hour-long talk
on this, but I did not really have--I was not conversant with
which States had these long lines and things like that. How do
we get that out there nationally so it gets States to have that
incentive to move themselves up in the rankings?
Mr. Stewart [continuing]. Well, part of it is the Election
Performance Index and ideas in Professor Gerken's book. Another
thing I have seen develop which I mention in my testimony is
that we need a marriage of election officials and researchers
together who can understand each others' worlds. Quite frankly,
there has been mistrust between the two, because researchers
oftentimes just want data to write papers and do not understand
the challenges that are faced by local election officials. So,
part of it is the creation----
Senator Klobuchar. And there are a lot of challenges.
Mr. Stewart. Yes. Part of it is creation of this network of
people with shared interests and concerns with each others'
problems. That is an important thing. The EAC has a role in
that, but universities and foundations also have a role in
that, too.
Senator Klobuchar. Mr. Kennedy.
Mr. Kennedy. I would say that the States have a very
prominent role that needs to be done here. You know, one, the
Wisconsin idea in our education has always been to bring the
University of Wisconsin and its satellite campuses into the
communities, and one of the reasons we are very successful is
that we have a tremendous relationship with the University of
Wisconsin's political scientists and they show a lot of
interest. We have been trying to feed their needs by giving
them a lot of data. So, the marriage that Professor Stewart
talked about is very important and it is something that comes
natural from our experience.
The other thing is for the State to be taking a leadership
role. I mentioned in my testimony how important it is to get
buy-in from our local election officials, giving them reasons
why this data is important, addressing their very real concerns
about, well, it is not fair that we are getting compared
against each other, and it is, like, well, this is part of the
exchange of information. It is going to help you improve and it
forces you to explain your case, why your costs might be
higher, for example, because it is something we have gotten a
lot of data on.
But, the other thing is the State can take a leadership
role in the technology that we are talking about. Electronic
poll books, we have been talking about, is going to make sure
that that data is collected in real time. We know what time
people are coming into the polling places with electronic poll
books. Making sure that the voting equipment that people are
using has--will also show the kind of data that can then be--
you know, the State can take the lead in taking it, as long as
it is in electronic format, leveraging technology. So, this is
where the State provides a leadership role to the locals on
that. So, that is where I would see it.
Senator Klobuchar. Okay. Thank you.
Mr. Becker.
Mr. Becker. Well, I would say several things. First,
obviously, we should make everyone aware that there is a
baseline that exists out there. At pewstates.org/EPI, the Index
exists. And not only the 17 indicators, but you can isolate any
particular indicator. If you just want to look at wait times or
voter registration rates or turnouts, or look at a combination,
or compare States, that is all available.
And I think one of the things that comes up----
Senator Klobuchar. Well, maybe we could have, like, some
kind of a little press event on the Hill when the numbers come
out, or----
Mr. Becker [continuing]. We have got them----
Senator Klobuchar [continuing]. The Rules Committee, we
could do a very exciting press conference----
Mr. Becker. We have got a wonderful interactive that people
can play with that enables them to compare regions, States, one
State over time, look at any particular indicator or
combination of indicators.
Senator Klobuchar. Yes.
Mr. Becker. You know, some of the interesting things that
come out of it is though Florida was the worst on wait times in
2012, Florida actually performed about in the middle of all the
States----
Senator Klobuchar. I saw that in the thing. So, I did not
mean to, like----
Mr. Becker [continuing]. No, I----
Senator Klobuchar [continuing]. There are a bunch of people
from my State who move down there and everything, but I----
[Laughter.]
Mr. Becker. A bunch of people from every State move down
there.
[Laughter.]
Mr. Becker. But, it is one of those things, that if
anecdotes drives this debate, everyone would think Florida is
ground zero for worst election administration----
Senator Klobuchar. No, but there are other issues, and so
it is trying to rationally get that out there, and hopefully in
a bipartisan way----
Mr. Becker [continuing]. Exactly.
Senator Klobuchar [continuing]. Which was so much of the
issue with this. It can be very--okay.
Last, Mr. Riemer, and then I have to go to another hearing
on bulletproof vests, which will be a little different than
this one.
Mr. Riemer. Thank you, Senator. I think the combination of
the EAC survey, the Census data, combined with organizations
like Pew doing these performance index measures, is the way to
go. And, I think the States are beginning to produce better
data. The EAC survey was, in many ways, just--it floored State
election officials about the amount of data that was asked for,
and I think, while we have been doing this for a decade, it is
only done once every Federal election. So, this survey has only
been done four or five times and States are getting
progressively better at it.
I know in Virginia, our first EAC survey response was,
frankly, a joke. I do not think--I think we only reported about
a quarter of the information that was asked for. Now, we are
getting much better at it. We have made changes to our database
and polling place practices to obtain this data. So, I think we
are getting there.
And, I think what has been discussed is the more that
things are automated at the polling place, from electronic poll
books, to scanning IDs, to the equipment having better metrics,
I think we are going to get there----
Senator Klobuchar. Right, and you have all these
decentralized local election people that are really into this
stuff. As much as some of them are overburdened, they do like
to--I think it is their thing they do. And, I would think that,
eventually, for some of them, getting that data is kind of fun
and interesting and they are able to look at what is going on
across the country and how the State, at least, measures up.
So, do you think that is true, or is it not fun, Mr. Riemer?
Mr. Riemer. Virginia is a very diverse State----
Senator Klobuchar. Yes.
Mr. Riemer [continuing.] From very cosmopolitan and urban
in Northern Virginia----
Senator Klobuchar. Yes.
Mr. Riemer [continuing]. To Appalachian----
Senator Klobuchar. Right. Well, we have this, too. Yes.
Mr. Riemer. Exactly. So, I think some definitely are. You
have election policy wonks that are the local registrars. And
then some, frankly, are just there--some of them are part-time.
We have 17 part-time registrars in Virginia----
Senator Klobuchar. Yes.
Mr. Riemer [continuing]. And, I will be honest, they are
not really that interested in what you are talking about.
Senator Klobuchar. What is happening across the thing, yes.
Mr. Riemer. Not all of them, and I do not mean to----
Senator Klobuchar. I will have to check in on Finland--
Finland, Minnesota. I just know the rural ones that I have
worked with, they get really concerned about the cost issue,
and so they are interested in it that way, that if they think
things can make it better or things can make it worse, they are
going to be outspoken. So, in that way, I just think that while
they may not be into the wonkish part of it, they actually may
be into knowing some facts about how it is going and what is
working and what is not working, because they do speak out on
it. I know that from having been around our State, and I am
sure you know that, too, so----
Mr. Riemer [continuing]. Absolutely. They care very much
about the process.
Senator Klobuchar. They do.
Mr. Riemer. They still want to fix the process, it is
just----
Senator Klobuchar. They do, and so that is why I think
getting that information out there is a good thing.
Well, with that, I am going to include Senator Schumer's
statement, without objection, that he asked to have entered
into the record.
[The prepared statement of Chairman Schumer was submitted
for the record:]
Senator Klobuchar. And, on behalf of the Rules Committee, I
would like to thank all of our witnesses today for their
important testimony this morning.
This concludes the panels, and without objection, the
hearing record will remain open for five business days for
additional statements and post-hearing questions submitted in
writing for our witnesses to answer.
We will miss you, Jean, but we know you are going to do
great out there.
Thank you. The hearing is adjourned.
[Whereupon, at 10:51 a.m., the committee was adjourned.]
APPENDIX MATERIAL SUBMITTED
----------
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
HEARING--ELECTION ADMINISTRATION:.
EXAMINING HOW EARLY AND ABSENTEE.
VOTING CAN BENEFIT CITIZENS.
AND ADMINISTRATORS
----------
WEDNESDAY, JUNE 25, 2014
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 2:00 p.m., in
Room SR-301, Russell Senate Office Building, Hon. John Walsh,
presiding.
Present: Senator Walsh.
Staff Present: Kelly Fado, Staff Director; Stacy Ettinger,
Chief Counsel; Veronica Gillespie, Elections Counsel; Ben
Hovland, Senior Counsel; Julia Richardson, Senior Counsel;
Abbie Sorrendino, Legislative Assistant; Jeffrey Johnson,
Clerk; Benjamin Grazda, Staff Assistant; Mary Suit Jones,
Republican Staff Director; Paul Vinovich, Republican Chief
Counsel; and Rachel Creviston, Republican Senior Professional
Staff.
OPENING STATEMENT OF SENATOR WALSH
Senator Walsh. The Rules Committee will come to order. I
want to wish everyone a very good afternoon and thank you for
being here.
We have had a series of votes scheduled to start at 2:30,
so in order to hear from all of our witnesses, we are going to
stick to the time limits and I will keep my statement brief for
the sake of time.
This hearing is the committee's fifth in a series on
improving the administration of elections. Today's hearing
focuses on how early and absentee voting can benefit citizens
and administrators. Chairman Schumer wanted to be here today,
but was unable to attend.
Today, we will discuss how common sense reforms, like early
voting and absentee voting can help more Americans, especially
those in rural areas or in Indian Country, participate in our
democracy.
Tuesday has been our official Election Day since 1845, but
it is not always possible for voters to make time to vote on
the second Tuesday in November. This is especially true for
voters in rural areas, Indian Country, farmers, ranchers, the
disabled, our veterans, and working parents. Many Americans
face significant time and distance-related barriers to voting
on time.
My home State of Montana is also known as Big Sky Country,
and for good reason. If you have ever driven around Montana,
you have seen that there is a lot of open space. We have
counties that would swallow Rhode Island. This means many
Montanans do not live close to their polling place or election
office. If you live in Indian Country or in many of our rural
counties, you could face several hours' drive to the voting
ballot.
The pressures of time and space mean Tuesday just does not
work for a wide range of folks, whether they are working, a
working parent that wants to get home to see their kids, or a
Tribal voter that faces a hundred-mile journey to vote.
Expanding early and absentee voting will provide more Americans
with an opportunity to vote. That is why this hearing is so
needed.
These reforms are not about favoring one party over another
or any particular group of Americans. They are simply matters
of good governance that benefit all Americans and that will
strengthen our democracy.
The committee is fortunate to have an excellent panel of
witnesses. Today, we have with us the Oregon Secretary of
State, Kate Brown. Kate oversees elections that are entirely
run by mail, helping voters exercise their right on their
schedule.
Larry Lomax, who served as the Registrar in Clark County,
Nevada, implemented what is certainly one of the best examples
in the country of citizen-focused early voting.
I am particularly pleased to have my fellow Montanan,
Rhonda Whiting from Western Native Voice, here today to discuss
how election administration reforms can help ease some of the
difficulties Americans face in getting to the ballot box.
Rhonda, thank you for being here. If we can implement reforms
that help overcome the barriers of time and space that Rhonda
routinely sees in Montana's Indian Country, I am confident that
we can expand voting access to voters across the country.
With that, I would like to thank all of our witnesses and I
look forward to our testimony.
At this time, we will now hear from our panel of witnesses
in alphabetical order. First, we will hear from Secretary of
State Kate Brown, who, again, serves as Oregon's Secretary of
State. Kate.
STATEMENT OF KATE BROWN, SECRETARY OF STATE, STATE OF OREGON,
SALEM, OREGON
Ms. Brown. Good afternoon and thank you, Mr. Chair and
committee members. I am Kate Brown. I am currently serving as
Oregon's Secretary of State, and I am honored to be here with
you today. I applaud your efforts to provide American voters
with choices on how and when to vote.
In Oregon, we believe that your vote is your voice and that
every single voice matters, and vote by mail is a great way to
put a ballot in the hands of every eligible voter. Our 30-year
experience with vote by mail has been a smashing success. Vote
by mail enhances turnout, is cost effective, and is secure.
Oregonians love vote by mail because it is convenient and
accessible to cast an informed ballot. Voters with disabilities
can vote independently in their own homes. And, rural
Oregonians who live miles from an elections office can simply
drop a ballot in the mailbox.
Oregon has been at the top ten of States in voter turnout
amongst registered voters in the last two Presidential cycles.
It is the only State in the top ten that does not have same-day
voter registration.
But where I think vote by mail shines is in turnout in
primary and special elections. In May of 2014, 35.9 percent of
registered Oregon voters voted in our primary. As the Chief
Elections Officer, I normally would not brag about this figure,
but so far, excluding yesterday's primaries, it is greater than
any of the other 20 States have held primaries so far this
year. For example, Kentucky had 27 percent turnout and Georgia
had 19 percent turnout.
And then in special elections, we shine, as well. In 2011,
both California and Oregon had special elections to fill
Congressional vacancies. Oregon's turnout in our special
election for that particular Congressional race was 51 percent
and California's was 25 percent, a huge difference.
Also, in these financially strapped times, the savings from
vote by mail are critical. We estimate the savings are 20 to 30
percent over polling place elections.
Vote by mail is also secure. To combat fraud, we have a
number of security measures in place. To ensure the integrity
of every single ballot, we check every single signature. We
track ballots with bar codes, and voters can now confirm that
their ballot has arrived at the elections office.
In the over 30 years of vote by mail, we have absolutely no
evidence of coercion, either, and the penalties for both fraud
and coercion are very, very severe.
Some folks are critical about vote by mail because they say
we no longer share the ritual of waiting in very long lines to
vote. Well, I would argue that it has been replaced by a much
richer version of civic engagement. Voters' pamphlets come
three weeks before the election and our ballots arrive about
two-and-a-half weeks prior to the election. Families sit down
at the dinner table and talk about who is on the ballot and
what is on the ballot. And, I know, at neighborhood
associations, they meet to discuss both candidates and the
issues that are on the ballot. This gives voters ample
opportunity to consider all of the issues on their ballot.
Across the West, voters are embracing vote by mail.
Colorado and Washington have also joined us in only serving
their voters via the mail, and not only through the mail, but
primarily mail ballot. And, many voters in States like Arizona
and California and Hawaii have made their choice. Secretary of
State Wyman from Washington is submitting a letter in support
today, as well, so it has broad bipartisan support.
I urge you to support efforts across the States to put
ballots in the hands of every eligible voter using our Postal
Service. Thank you so much.
[The prepared statement of Ms. Brown was submitted for the
record:]
Senator Walsh. Thank you, Ms. Brown.
Next, we will have John Fortier, the Director of the
Democracy Project at the Bipartisan Policy Center. John.
STATEMENT OF JOHN C. FORTIER, DIRECTOR, DEMOCRACY PROJECT,
BIPARTISAN POLICY CENTER, WASHINGTON, D.C.
Dr. Fortier. Great. Thank you, Senator Walsh, and thank you
for inviting me to testify today.
I am the author of a book, Absentee and Early Voting, of
several years ago and I wanted to give a little bit of
background of the rise of two types of convenience voting, one,
vote by mail, and also in-person early voting, and then lay out
some of the pluses and minuses.
If I could first start by noting two commissions, one which
you will hear from, Larry Lomax, the President's Commission on
Election Administration, which I have some connection with in
that we are going to be working closely with the Commission on
their recommendations, and also a commission that put out a
report yesterday, the Commission on Political Reform out of the
Bipartisan Policy Center. Both have recommendations regarding
early and absentee voting.
Quickly stated, the PCAA calls for the States to expand
opportunities to vote before Election Day, but notes that they
do not want the expansion of pre-Election Day voting to come at
the expense of facilities and resources dedicated to Election
Day.
And then the other, the Commission on Political Reform, has
a recommendation for a seven- to ten-day intense period of
early voting, which includes at least voting on one day of the
week before Election Day.
What I will note is both of these methods of voting have
risen dramatically. If you went back 35 years ago, you would
have found only about five percent of America voting before
Election Day, mostly by mail, for a reason, for a specific
reason, being away from the polls or being infirm or overseas.
That number has risen to about a third today, and both types
have significant participation, with about 17 percent or so--a
little bit more--voting by mail, and another 14 percent of the
electorate voting early in person.
But, I will note that there is very great variation among
the States. Many of the Western States are much more vote by
mail. Many of the Eastern States, Northeastern States, have a
very traditional single Election Day polling place-focused
election without much of either type of voting. And, then,
States like Texas and Tennessee and now Georgia and North
Carolina have a lot of in-person early voting. So, there really
is a great variety of practices across the country.
I want to address quickly the issue of turnout in these
methods of voting. I guess my big message is, I do not think
moving to either in-person early voting or voting by mail, the
primary reason you should do so is to dramatically increase
turnout. When I used to testify, I would say I think that,
really, the research showed that there was not much at all
increase in voter turnout. I think there is some more recent
evidence or studies in the vote by mail which show a small
increase in voter turnout. But, really, I think, these changes
are not dramatic, but the reasons for adopting them are more
convenience or to help election officials spread out the vote
across elections.
I will note two exceptions to this, and I think Secretary
Brown pointed to one. On very low turnout elections--local
elections or ballot initiatives or perhaps primaries--there is
a significant increase based on vote by mail, not so much when
you see the larger general elections.
And then on the early voting side, we do see some increase
in turnout based on vote centers, the ability to choose among
different locations within your county on a pre-Election Day or
sometimes even on Election Day itself basis, where you are not
limited to one local place, that you can actually go to a place
closer to work or on your commuting pattern. So, I think those
are two important exceptions.
What are my concerns? I am actually much more of a fan of
early voting in person than voting by mail, and my concerns
about vote by mail are some which Secretary Brown addressed.
One is privacy and the secret ballot. It may not be the
experience of most people that they have someone who might
coerce their vote, but there certainly are people who are
pressured or in a position where they are not casting their
vote freely. And, the secret ballot, of being able to go into a
polling place and put the curtain behind you, allows you to
escape those pressures.
Secondly, there are some problems in transmission of the
ballot. If we see vote fraud--people argue whether there is a
lot or not a lot, but I think most people would agree that most
of the cases we have are in the absentee or vote by mail realm.
And then, finally, there is some question of error
checking, whether the ballot that you cast by mail does not
have the error checking that you would have at the polling
place, and more ballots are lost, either because they do not
have the signature requirements or the ballots themselves have
some errors that would have been caught.
I will say that on early voting, the simple point is that
there is no single formula. I would not impose a formula for
across the country because we have rural and urban. We have
places that do lots of vote by mail, lots of early voting, some
who do not do a lot. But, my preference would be for a short,
intense period of early voting, one that has significant hours,
good locations, but that it is not a Federal matter where you
prescribe one type for all the States. The States have to weigh
their particular circumstances to figure out whether the early
voting that they might adopt in their State is proper for their
State.
So, I will conclude my testimony with that.
[The prepared statement of Dr. Fortier was submitted for
the record:]
Senator Walsh. Thank you, Dr. Fortier.
Mr. Lomax, please proceed.
STATEMENT OF HARVARD ``LARRY'' LOMAX, REGISTRAR OF VOTERS
(RETIRED), CLARK COUNTY ELECTION DEPARTMENT, LAS VEGAS, NEVADA
Mr. Lomax. Good afternoon. I was asked here today to talk
about Clark County's early voting program, which my personal
belief is it is one of the most successful in the country.
Many States claim they conduct early voting, but what they
mean varies widely from State to State. In some States, early
voting simply means anyone can request an absentee ballot and
vote by mail. In others, it means voters can vote in person
prior to Election Day, but only at the Clerk's Office.
In Clark County, early voting means that during a two-week
period prior to Election Day, any registered voter can vote in
person at a time and place convenient for them. Rather than
requiring the voter to come to a government office, which is
invariably an inconvenient experience for the voter, we take
the opposite approach.
We look to see where voters go during their normal day-to-
day routines and then we take our voting machines into their
neighborhoods to them. Most voters, in fact, will pass by one
of our early voting locations during the two-week early voting
period during their normal course of business. We provide early
voting sites in supermarkets, all the major malls, in
libraries, in recreation centers and other facilities that
attract the local population whether or not an election is in
process.
So the voters will know when we will be in their
neighborhood prior to the beginning of early voting, every
voter in Nevada is mailed a sample ballot, which includes the
complete early voting schedule.
Sites that are located in the malls, in major shopping
locations, and in a few minority areas where there are no major
shopping locations, are open early day during the two-week
period. In major elections, if the facility is open for
business, so are we. Thus, in our mall sites, people can cast
their ballot from ten in the morning until nine at night.
We also have mobile voting teams that rotate through
neighborhood locations, primarily supermarkets, recreation
centers, and libraries, and conduct voting for two or three
days in those locations. If they are in a library or recreation
center, they are available to the voter as long as the facility
is open. Since most supermarkets in Las Vegas Valley are open
24/7, our supermarket teams are typically open from eight in
the morning until seven at night.
To serve areas in the county where there are no suitable
facilities in which to conduct voting, often minority areas, we
have four generator-powered self-sustaining voter trailers
which we can position anywhere in the county. With these
trailers, we can ensure all voters in Clark County have easy
access to an early voting location, and their popularity is
reflected by the fact that more than 60,000 voters have voted
in these trailers in the last two Presidential elections.
So, how have the voters in Clark County taken to early
voting? The great majority of them love it and the turnout
numbers show it. While the number of Election Day voters over
the last five Presidential elections--and this is Election Day
voters--has remained relatively constant at about 200,000
voters per Presidential election, during the same time period,
early voting turnout has exploded.
In the 1996 Presidential election, the first year of early
voting, 17 percent of the voters, or 46,000 people, voted
early. Sixteen years later, in the last Presidential election,
437,000 people voted early. That was 63 percent of everybody
who voted in the election.
And, let me point out, in 2012, it only took us 450 voting
machines to support the 437,000 voters who voted in those two
weeks. On Election Day, it took us 4,000 voting machines to
support the 200,000 people because they had to go to specific
polling places to cast their ballot. I point this out because
one of the arguments against early voting is the alleged
increase in the cost of an election. Certainly, there is a cost
to early voting, but it also significantly reduces the amount
of voting equipment that a jurisdiction requires, in our case,
by 50 percent.
In addition to allowing voters the opportunity to vote at a
time and place convenient for them, there are additional
benefits to early voting. Post-election audits show fewer
mistakes are made each election because early voting workers,
working 14 consecutive days, are much more experienced and,
therefore, make less mistakes than the thousands of workers
recruited to train and work only on Election Day, what we call
our One Day Wonders.
And, finally, as the popularity of early voting has
increased, our voter turnout has also increased. In the 1996
and 2000 Presidential elections, when early voting was just
starting and on the rise, the percentage of registered voters
who voted overall in the election was in the 60 percent range.
In the last three Presidential elections, where early voting
turnout has always been 50 percent or more of the turnout, our
voter turnout has been 80 percent or more.
In summary, Clark County's two-week early voting program
has been an enormous success. The voters love it. Elections run
smoothly, and Election Day lines are a thing of the past. Thank
you.
[The prepared statement of Mr. Lomax was submitted for the
record:]
Senator Walsh. Thank you, Mr. Lomax.
Ms. Whiting, please proceed.
STATEMENT OF RHONDA WHITING, CHAIRMAN OF THE BOARD, WESTERN
NATIVE VOICE, MISSOULA, MONTANA
Ms. Whiting. Yes. Thank you, Senator Walsh. I am here as
the Chairman of the Western Native Voice Board of Directors for
the Tribes in Montana.
The history of Native American voting is the story of a
group of U.S. citizens who were compelled to be incorporated
into the nation and then given the rights of citizens in a
disjointed manner, in many cases, over many decades. It is the
story of a group of U.S. citizens who were unlawfully denied
the right to vote through illegal means, at times. Even though
Native American citizens have served in the military, pay
taxes, and are a major part of the United States, they were not
able to vote until they became citizens in 1924, with the
Indian Citizenship Act. Then, the Tribes were sent to
reservations through the New Deal times with the Reorganization
Act.
Many of these reservations are isolated, and what happens
on the reservations is that we are not able to use the--we are
not able to use doing voting or doing anything without our
computers and network systems, and that is not the norm for
most reservations at this point in time. We talk about bridging
the digital divide. We are making progress, but we do have--we
are isolated in lots of ways. In fact, in reservations like
Fort Peck, a lot of times, you cannot even use your cell phone.
So, we really do need to continue to work on that.
I would like to propose some practical solutions that will
alleviate some of the problems to keep Native Americans from
exercising their right to vote.
First of all, expansion of access to registration modes
will enable and facilitate voting. Intake of voting
registration forms by government offices and educational
facilities. For example, in Montana, the Indian Health Service
and Tribally controlled community colleges, which we have on
each reservation--not all Tribes have that--it would be a
practical method of capturing voter registration forms. This
would help increase the voting tremendously.
In 2014, electronic registration options that are secure,
safe, and verifiable are desirable, particularly for younger
people who are used to conducting business online. Creating a
Federal standard for electronic voting is critical to
modernizing the Federal process.
Another issue that we face is the distance involved for
Native Americans and other rural voters to travel to vote. In
Montana, with election services based in county seats, there is
considerable distance for most Native American communities.
Some Indians have to travel in excess of 100 miles to vote. It
is hard to overstate the burden that is imposed upon Native
American citizens by traveling long distances to cast their
vote. The remote locations for many people and the economic
problems that they face make it very difficult to get to the
polling places.
Placing satellite early voting locations in Native American
communities would alleviate these barriers. One of the
complaints that we hear, that it is a greater cost to the
Secretary of State, we are hoping that we can overcome that and
be able to have the satellite offices. It is important to
emphasize the economic burdens, and that is why these remote
communities really need the satellite offices.
And the experience is in Montana that the same-day
registration expands access to the polls for many citizens with
busy lives and demanding careers. The same-day registration by
college students, working mothers, busy professionals, and
service people indicates that it is a basic part of the
election administration to provide the ability to vote.
Native Americans have benefitted in that same way. Same-day
registration in Montana has helped lessen the negative effects
of the electoral system for Natives, who overwhelmingly support
it. Sadly, same-day registration is under attack in Montana
with some ballot initiatives that were rolled out. They do not
look at the Native Americans and what we need to do to enable
us to vote.
I believe that if we were able to do these practical
solutions, which would include satellite voting and same-day
registration, that the voting for Native Americans would
increase. We have, at times, with a lot of work--and I have
been working on this for a long time, formally since 1988--and
when we had a lot of people helping us, we were able to get in
some polling places 90 percent turnout. That is not always the
case, and it would certainly be much more efficient if we could
do satellite voting.
Thank you.
[The prepared statement of Ms. Whiting was submitted for
the record:]
Senator Walsh. Thank you, Ms. Whiting, for your comments.
We now have time for a few questions. I have asked each
Senator to limit their questions to five minutes, and I think I
will go first.
[Laughter.]
Senator Walsh. With that, Ms. Whiting, thank you for
traveling all the way from Big Sky Country to visit us today.
It is great to have more Montanans in the District. You
mentioned the economic barriers many Tribal members and rural
residents face while exercising their right to vote. Could you
elaborate on how these barriers affect their ability to cast a
vote.
Ms. Whiting. I know for a fact that the Superintendent of
Schools, Margaret Campbell, had talked to me about the people
on the Fort Belknap Reservation and those that live in Hays/
Lodge Pole. She said that with 30 percent of the people not
being employed, and higher numbers than that, that she could go
vote, but to drive into Harlem, which is a round-trip 100
miles, but a lot of people do not have the ability to do that.
So, economically, we have the highest poverty rate in the
State, and in many States across the United States. So,
financially, it is very, very difficult for some people.
Senator Walsh. Okay. Thank you.
Mr. Lomax, you have raised turnout and increased voting
access by making early voting sites more accessible for your
voters. Clark County, Nevada, however, has about twice the
population that Montana has. Do you think that your early
voting reforms, particularly innovations like mobile voting
sites, could be applied in more rural areas that do not have
the technology that you may have throughout your State?
Mr. Lomax. Yes, I certainly do. Yes, sir. There is a
variety of ways by which you can provide the voters with
ballots, and we have a lot of very rural counties in Nevada. In
fact, 75 percent of the population is in Clark County. About 20
percent is in Washoe County. And, all the other 14 counties
share the rest, and so there are lots of counties up there that
have several thousand registered voters in total and they are
spread out throughout the county.
They depend--they do not use technology nearly as much up
there. They just--they use the--they have to move the voting
machines to where the voters are. It is still the same concept.
And, usually, the voters are going to be concentrated in some
areas around the counties. But, I see no reason it would not
work.
Senator Walsh. Okay. Thank you.
Secretary Brown, Dr. Fortier mentioned some potential
concerns with vote by mail, such as secrecy of the ballot,
transmission issues, and potential voter errors that are unable
to be corrected. Given your experience overseeing elections in
Oregon, do you share these concerns, and can you describe any
efforts that have solved some of the problems that you have
faced.
Ms. Brown. Thank you, Senator Walsh. As the Chief Elections
Officer, my primary concern is to ensure the integrity of the
ballot. We have a number of methods in place to ensure the
integrity of Oregon's ballot. We have a centralized voter
registration database. As I mentioned in my testimony, we check
every single signature to verify it against our voter
registration rolls. And, we have a bar code on the ballot to
track every single ballot. So, these measures ensure the
integrity of Oregon's ballot. These are some of the measures
that we have.
I will share, vote by mail was adopted by Oregon voters in
1998. Since 2000, we have been regularly voting by mail,
roughly 17 million ballots. We have had 13 convictions for
voter fraud during that time period. So, the incident of fraud
is extremely small.
In terms of privacy of the ballot and coercion, as I
mentioned, we have had absolutely no evidence of coercion in
voting in Oregon since we implemented vote by mail. I reached
out to one of the women that represents our Oregon Coalition
Against Domestic and Sexual Violence to verify this
information. They have reviewed restraining orders in the past.
My predecessor, Secretary Bill Bradbury, also worked with the
domestic violence community. We have just heard of no evidence
of coercion in the vote by mail ballots in Oregon.
Senator Walsh. Okay. Thank you, Secretary Brown.
So, that completes my questions, so on behalf of the Rules
Committee, I would like to take this time to thank all of our
witnesses for being here today and for your important
testimony. We will make this available to all of our members of
the committee and we will take a look at it, and if they have
any questions, they may reach out to you. But, again, I
appreciate you taking the time out of your busy schedules to be
here with us today.
So, this concludes the panel for today's hearing. Without
hearing any objection, the hearing record will remain open for
five business days for additional statements and post-hearing
questions submitted in writing for our witnesses to answer.
Again, I apologize for none of my colleagues being able to
be here today. They have busy schedules, a lot going on. But,
this is very important. We want to make sure that all of our
citizens have the ability to vote and that they can participate
in our democracy, and I think this hearing today will help us
move forward with that respect. So, thank you very much.
This hearing is now adjourned.
[Whereupon, at 2:29 p.m., the committee was adjourned.]
APPENDIX MATERIAL SUBMITTED
----------
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
HEARING--THE DISCLOSE ACT (S. 2516).
AND THE NEED FOR EXPANDED PUBLIC DISCLOSURE OF FUNDS RAISED AND SPENT.
TO INFLUENCE FEDERAL ELECTIONS
----------
WEDNESDAY, JULY 23, 2014
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The Committee met, pursuant to notice, at 10:00 a.m., in
Room SR-301, Russell Senate Office Building, Hon. Angus S.
King, Jr., presiding.
Present: Senators King, Schumer, Udall, Klobuchar, Roberts,
McConnell, Blunt, and Cruz.
Staff Present: Kelly Fado, Staff Director; Veronica
Gillespie, Elections Counsel; Ben Hovland, Senior Counsel;
Sharon Larimer, Professional Staff; Julia Richardson, Senior
Counsel; Abbie Sorrendino, Legislative Assistant; Phillip
Rumsey, Legislative Correspondent; Leigh Schisler, Special
Assistant; Jeffrey Johnson, Clerk; Benjamin Grazda, Staff
Assistant; Mary Suit Jones, Republican Staff Director; Shaun
Parkin, Republican Deputy Staff Director; Paul Vinovich,
Republican Chief Counsel; Sarah Little, Republican
Communications Director; Trish Kent, Republican Senior
Professional Staff; and Rachel Creviston, Republican Senior
Professional Staff.
OPENING STATEMENT OF SENATOR KING
Senator King. Good morning. The Rules Committee will come
to order. Good morning to everyone who has joined us. Senator
Whitehouse is at the table.
This hearing is the Committee's second hearing following
the Supreme Court's McCutcheon decision earlier this year that
looks at issues surrounding money in our political system.
In April, the Committee met to hear from a panel of experts
about the McCutcheon decision and how our campaign finance
landscape has changed in recent years. We know that McCutcheon
coupled with the Citizens United decision have created an
environment where we will see record amounts of money spent to
influence elections around the country. Today's hearing will
focus specifically on the issue of campaign finance in American
politics and the need for expanded disclosure.
Our constitutional system contains many provisions that are
in tension with one another, important provisions which often
touch our basic rights and responsibilities in sometimes
conflicting and contradictory ways. One of these, which I
wrestle with daily as a member of the Intelligence Committee,
for example, is the tension between the fundamental charge of
the Preamble that we are to provide for the common defense and
ensure the domestic tranquility, while at the same time
observing the privacy protections of the Fourth and Fifth
Amendments.
Another example is the subject of today's hearing: How do
we respect and enhance the freedom of expression enshrined in
the First Amendment while protecting the Government from being
corrupted by the unchecked flow of money to public officials?
We have wrestled with this problem for well over 100 years
through periodic scandals and periodic corrections, new laws
and new ways to evade those laws. But as I observed at the
outset of our Committee's hearing on this subject several
months ago, we have never seen anything like what is happening
today.
The average Senator now must raise more than $5,000 a day,
7 days a week, 365 days a year for 6 years in order to be
prepared for the next election. But as disheartening as that
is, it is only part of the story.
Over the last decade, and accelerating in the last 4 or 5
years, is a new phenomenon: the unchecked, unlimited,
undisclosed gusher of money from individuals, interest groups,
and shadowy organizations that has become a kind of parallel
universe of essentially unregulated campaign cash.
In recent years, the Supreme Court has steadily chipped
away at two of the three pillars of the campaign finance
regulation concept, which goes back to the early days of the
last century, and has effectively eliminated limits on sources
and amounts. But the Court's fundamental basis for doing so was
the assumption that the third pillar--disclosure of the source
of contributions--remained as a bulwark against corruption
which would otherwise threaten the heart of our political
process.
Justice Roberts in the McCutcheon case said, ``Disclosure
of contributions minimizes the potential for abuse of the
campaign finance system. Disclosure requirements are in part
justified based upon a governmental interest in providing the
electorate with information about the sources of election-
related spending. They may also deter actual corruption and
avoid the appearance of corruption by exposing large
contributions and expenditures to the light of publicity.''
That is Justice Roberts. And he makes total sense. But,
sadly, this kind of disclosure, the disclosure which the Court
relied upon as a principal justification for the McCutcheon and
Citizens United decisions simply does not exist under today's
campaign finance laws, and the result is an almost total loss
of accountability, the hiding of vital information from
voters--who it is that is trying to influence their votes--and
an inevitable slide toward corruption and scandal.
I know that many consider this a partisan issue. I do not.
Although the momentary advantage under the present system
appears to favor the Republicans, the whim of a couple of
liberal billionaires could change that perception overnight.
This is a systemic issue which should be fixed with an eye to
the long-term health of our democracy, not a fine calculation
of who might gain an edge in the next election.
Today we meet to consider a bill to remedy the shortfall.
Senator Whitehouse has been a leader on this issue for many
years. His bill is not the only bill. I also have a bill, the
Real Time Transparency Act, which would require Members of
Congress, PACs, and political committees to report $1,000
donations electronically within 48 hours.
Probably the purest form of free political speech in
America is the traditional New England town meeting. It is a
place where citizens from all walks of life gather together,
usually on a cool Saturday morning in early March, to debate,
argue, and decide the school budget, whether to buy a new
police cruiser, or which roads will be paved in the coming
year. I have been to those meetings in Maine, and I have heard
the spirited debates and seen some folks go home angry and hurt
when their point of view did not prevail.
But everyone speaks up for themselves in Maine, and I have
never seen someone stand to speak in disguise. I have never
seen someone stand to speak in disguise. We know who is doing
the talking, and that in itself is valuable information. And so
it should be in November. Because what is an election but a big
town meeting where the people decide the future of their
community or their country? And an essential part of the
debate, an essential part of how we make decisions is knowing
who is doing the talking.
Senator Roberts.
OPENING STATEMENT OF SENATOR ROBERTS
Senator Roberts. Well, thank you, Mr. Chairman.
For those of us who opposed the McCain-Feingold bill, it is
always an interesting experience to hear concerns being
expressed about the current state of our campaign finance
system. I opposed that legislation, along with most of my
Republican colleagues, because we feared it would make our
system worse, not better. We feared it would not get money out
of the system but would simply divert it to other sources. That
has now come to pass. It was not hard to predict.
Unfortunately, instead of recognizing the folly and the
futility of the last regulatory scheme, the majority seeks to
impose a new one, this time under the guise of disclosure.
Now, that sounds harmless enough. It sounds very
reasonable, especially when it is articulated by my good
friend. The bill before the Committee today has been introduced
in one form or another in each of the last three Congresses.
Though the provisions have varied in some respects, the goal
has been consistent: to suppress speech by imposing costly and
burdensome regulations on its exercise.
While other efforts to achieve this goal have been struck
down as unconstitutional by the courts, the majority has
attempted to use disclosure as a means to erect a new
regulatory scheme to silence their opponents. This effort must
be seen in the context of their larger goal to amend the First
Amendment to permit even more regulation of political speech.
I have here the Constitution of the United States and also
the First Amendment: ``Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof, or abridging the freedom of speech.'' It also mentions
the press and the right of the people peacefully to assemble
and to petition the Government for a redress of grievances,
whether it be in Kansas or in New England.
This effort must be seen, again, in the context of the
larger goal to amend the First Amendment to permit even more
regulation of political speech. I repeated that on purpose.
The Judiciary Committee has reported a constitutional
amendment, which our Majority Leader has said we will be voting
on in September that would allow the Congress to impose
reasonable restrictions on speech. Luckily, previous
considerations of the DISCLOSE Act provide some insight into
what the majority regards as reasonable.
For starters, when the DISCLOSE Act was considered by the
House in 2010, the restrictions and obligations it imposed were
applied to groups disfavored by the majority. A number of
corporations were simply prohibited from speaking. Government
contractors and TARP recipients were prohibited from making
independent expenditures. During floor consideration, an
amendment was added to also prohibit speech by companies that
explore and produce oil and gas on the Outer Continental shelf.
What is that all about? Well, the bill was on the floor soon
after the Deepwater Horizon spill, you see, so this was an easy
target.
Not surprisingly, the majority thought it was perfectly
reasonable to prevent any of these companies from speaking, but
did not think it was necessary to extend those restrictions to
the unions that might represent the workforce in these
companies. Republican amendments to extend the restrictions to
these unions were rejected. The majority did not find them
reasonable, apparently. In some cases, groups were excluded
from the disclosure obligation solely because the votes were
not there to include them.
That is what happens once the Congress starts to impose
speech restrictions. The restrictions get applied to whoever
does not have enough votes in the Congress to prevent them.
That is why the First Amendment begins, ``Congress shall make
no law . . . '' Imposing speech regulations based on the whims
of whatever party happens to be in the majority in Congress at
a given time is not a reasonable exercise, but it is exactly
what happens once we start down this path.
I give this little recent history lesson, Mr. Chairman,
because I think it is important we not try to fool ourselves or
anybody else about what is going on here. There is no mystery
about the purpose of the DISCLOSE Act, this version or any
other prior one. We know the majority is upset about the ads
that are attacking them and their agenda. We know they want
those ads to stop. We know they hope new disclosure
requirements will achieve that goal. We know they think the
requirements they want to impose are reasonable. We just do not
agree.
We do not believe new regulations will improve our system.
We do not think imposing new costs on the exercise of free
speech rights will improve our democracy.
If the IRS targeting scandal has taught us anything, it
should be that giving Federal bureaucrats control over the
political activity of American citizens is a recipe for
disaster. It is time to admit the failure of the regulatory
model and reverse the mistake we made when we passed McCain-
Feingold and the Federal Election Campaign Act before it. I
know my friends in the majority want to silence their opponents
by any available means, but they should stop trying. New
regulations will not make our system better. Getting rid of the
regulations we have will.
If we really want disclosure, we should be advancing
proposals that will redirect resources to the candidates and
the parties. That is long overdue. They are fully accountable
and fully disclose everything they spend and receive. Getting
rid of the limits on parties and candidates would increase
transparency and enhance disclosure. If disclosure is the goal,
that is the way to achieve it. Unfortunately, the DISCLOSE Act
has another goal, one no American who supports the Constitution
should support.
Thank you, Mr. Chairman.
Senator King. We are pleased to have join us this morning
the distinguished Republican Leader, Senator McConnell. Senator
McConnell, a statement?
OPENING STATEMENT OF SENATOR McCONNELL
Senator McConnell. Thank you, Mr. Chairman, Senator
Roberts. I appreciate the opportunity to be here to talk about
the DISCLOSE Act, and I will get right to it.
The proposal is not new. This is the third time we have
seen it. But it is precisely because of the doggedness of the
proponents of this bill that I have come here today to make my
observations.
For more than two centuries, we have had regularly
scheduled elections in our country. Every 2 years, the major
parties present a vision for the future with confidence in the
people, with confidence that the marketplace of ideas, the best
arguments, will win out. And yet every 2 years now, with near
metronomic regularity, our friends on the other side can now be
expected to propose some new attempt to silence their critics,
or in the case of the DISCLOSE Act, an old attempt to silence
critics.
Sadly, it has now come to the point where you can set your
clock to the Democrats' attempt to stifle the free speech
rights of the American people. To me, this means they have
either lost confidence in the centuries-old bargain that said
the best political argument will prevail or they have simply
lost faith in the First Amendment itself.
But either way, it is now fairly clear that our friends on
the other side have given up on the power of their governing
vision alone to carry the day electorally. That is not just a
shame; it is not just a commentary on the left, and it is not
simply some political stunt aimed at exciting the base in an
election year, because if that is all it was, we could just
dismiss it and move on.
But it is actually far worse than all that. Collectively
and individually, these continued efforts to weaken voter
participation in our elections poses a real threat to the right
of free speech in this country, something which is guaranteed
by the First Amendment to the Bill of Rights and which has
ensured the integrity of the political process in this country
for more than two centuries. We have not always lived up to the
promise of the First Amendment as a Nation, but we have always
had recourse to it in correcting past mistakes. And no one--no
one--should be tampering with it.
Yet again and again in recent years, that is just exactly
what we have seen. We saw it on shameful display at the IRS, as
detailed in the IG report on the agency's activities leading up
to the 2012 election and in the administration's subsequent
efforts to codify through regulation just the kind of targeting
that took place. We saw it in recent efforts by Democrats to
empower Congress, as Senator Roberts pointed out, through a
constitutional amendment to limit the free speech rights of
individuals and groups--a truly radical proposal that would end
all arguments about what little regard our friends on the other
side have for the rights of free citizens to set the direction
of our country. And we have seen it three times now in the
biennial revival of the DISCLOSE Act.
Let me be blunt. This proposal is little more than a crude
intimidation tactic masquerading as good government. And the
fact that we have been forced to consider it once again is the
clearest proof yet that our friends on the other side are
fixated--on suppressing speech.
It is no secret that the First Amendment has been a
consuming passion of mine for many years. I have fought hard to
defend it on the Senate floor and in the highest Court of the
land. It has pitted me at times against members of my own
party, including President Bush. And in its defense, I have
occasionally formed alliances with some unlikely allies. Among
them is the American Civil Liberties Union, and I would like to
ask, Mr. Chairman, consent to enclose a letter from the ACLU
opposing the DISCLOSE Act in the record at this point.
Senator King. Without objection.
[The letter was submitted for the record:]
Senator McConnell. It is to the great credit of the ACLU
that, even though largely not aligned with most members of my
party on most issues, they have stood strong in opposition to
the DISCLOSE Act. I am grateful for their efforts on this issue
yet again.
Some might say that the arguments on both sides of this
proposal hardly need repeating since Democrats have now
proposed it on three separate occasions, but I see it
differently. In my view, it is precisely when we stop speaking
out against proposals like this that we are in the greatest
danger of ceding our rights to those who would deprive us of
them.
Whenever our friends spring from behind closed doors with a
bill like this one, we need to be ready to respond in kind. And
in this case, the first part of that response should be to
point out the obvious. At a time when millions of Americans are
struggling to find work, small businesses are sputtering under
the weight of an increasingly brazen regulatory state, our VA
system is failing our veterans, and tens of thousands of
unaccompanied minors have been flowing across the border
without any clear policy solution from either the White House
or Democratic leaders in Congress, Democratic leaders should
not be focused on a bill the primary purpose of which is to
silence their critics. Their persistence at this particular
moment is eloquent testimony to where the priorities lie.
The second thing I would like to say about this proposal is
that the entire premise for it is utterly baseless. The
supposed justification of this bill is the need to ``do
something'' about certain people in voluntary associations
participating in the political process. But this, of course,
gets it exactly backwards. We should not be trying to think of
ways to keep people from participating in the political
process. We should be encouraging more of it. As veteran
columnist George Will has noted, the political process is not
some private club in which the parties and candidates control
the membership. And yet that is precisely what the DISCLOSE Act
aims to do.
Now, I know our Democratic friends are frustrated. Prior
attempts to pass a constitutional amendment limiting political
speech have failed spectacularly, hitting a high watermark of
40 votes in 2001.
The Supreme Court has also spoken clearly and emphatically
that, under the Constitution, free speech is not limited to
corporations that own liberal media outlets.
The purpose of the DISCLOSE Act is to get around all of
that. If the supporters of this proposal cannot suppress
individuals or groups, the thinking on the left goes, then they
should just go after the funding that amplifies the message,
and they will do it in the old-fashioned way, through donor
harassment and intimidation.
We have seen this kind of thing before, my friends, perhaps
most vividly in the 1950s when the State of Alabama tried to
get its hands on the donor list of the NAACP. The Supreme Court
knew what that was about, which is why they ruled against
forced disclosure then. They knew that the forced disclosure of
donors mitigated against the rights of free association,
because if people have reason to fear that their names and
reputations will be attacked because of the causes they
support, well, then, they are less likely to support them, of
course. And that is the last thing we should want in a free
society.
The FEC, interestingly enough, has applied this same
principle, by the way, in protecting the donor list of the
Socialist Workers Party, which most of you probably did not
even known existed. The FEC has supported protecting the donor
list of the Socialist Workers Party since 1979. So we have seen
what the loudest proponents of disclosure have intended in the
past, and it is not good government.
The President likes to say that the only people who oppose
disclosure are people who have something to hide. History tells
us otherwise. The sad fact is this kind of Government-led
intimidation is part of a much broader effort that has been
underway within the Obama administration for years. We have
seen parallel efforts at suppressing speech at the FCC, the
SEC, the IRS, DOJ, and HHS. And the tactics we saw during the
2012 campaign speak for themselves, from the enemies list of
conservative donors on the Obama campaign's Web site to the
strategic name dropping of conservative targets by the
President's political advisers. And that is what this proposal
is about. It is about harvesting the names of donors in the
hopes of driving them off the playing field. We have seen it
before, and we are seeing it now.
So let me just repeat today what I have said elsewhere on
this entire effort. No individual or group in this country
should have to face harassment or intimidation or incur
crippling expenses defending themselves against their own
Government simply because that Government does not like the
message they are advocating. It is pretty simple, really. If
you cannot convince people of the wisdom of your policies, it
is time to come up with better arguments.
But tampering with our First Amendment rights is a
dangerous business, and that is what this legislation before us
aims to do. It is an unprecedented requirement for groups to
publicly disclose their donors, stripping a protection
recognized and solidified by the courts. From the NAACP to the
Sierra Club to the Chamber of Commerce, every one of them would
now be forced to subject their members to the kind of public
intimidation we have seen at other moments in our history.
The authors of this bill have sought bipartisan cover for
this latest effort by claiming that labor unions would also be
required to disclose their donors under this bill. Upon closer
inspection, however, it becomes clear that through a cynical
and elaborate scheme of thresholds and triggers, these unions
are given, of course, a free pass, and that just underscores
who the true targets of this legislation are. The targets are
anyone who criticizes Democrats.
Which brings me to the final point. For 4 years now, we
have heard how the Supreme Court unleashed a torrent of
corporate money into the political process through the Citizens
United ruling. Well, here is the truth. Individuals from New
York to California have given tens of millions of dollars to
candidates and causes, as is their First Amendment right. But
the big money, it turns out, is coming from the same unions
that are exempted from this bill, which, by one count, have
spent nearly $4.5 billion over the past 9 years on politics,
including $800 million in 2008 alone.
So for those who want to ``do something,'' allow me to make
a humble suggestion. Instead of suppressing free speech, let us
look to State models for guidance. The endless web of campaign
finance laws we have seen at the Federal level have done
nothing but sow confusion. But they have been good for one
group: The election lawyers are doing great.
A simpler, more reasoned approach would be for us to adopt
the Virginia plan: remove the limits, allow candidates to
accept and report all contributions, and let the citizens
decide what is proper or not. Money will never be removed from
politics. It is just like trying to put a rock on Jell-O. It
just moves somewhere else. The intellectually honest approach
is to remove the rock.
So, in closing, Mr. Chairman, I will continue to do
everything in my power to protect the First Amendment rights
from this latest iteration of the DISCLOSE Act and every other
effort to suppress the free speech rights of the American
people. And I sincerely hope my colleagues, all of whom swore
the same oath to support and defend the Constitution that I
did, will stand up. The First Amendment undergirds all other
rights. We need to defend it with everything we have got.
Thank you.
Senator King. Thank you. Thank you, Senator McConnell.
Senator Udall.
OPENING STATEMENT OF SENATOR UDALL
Senator Udall. Thank you, Chairman King, and it is good to
see my good friend Senator Whitehouse here, who has always been
a champion of open and fair elections. And I very much support
his DISCLOSE Act and hope that we can move it forward.
We have a serious problem and a great challenge. Our
campaign finance system is failing and it is broken. It is
being dismantled step by step by a narrow majority of the
Supreme Court, taking us back to Watergate-era rules, the same
rules that fostered corruption, outraged voters, and prompted
campaign finance regulations in the first place, from 1976 in
Buckley v. Valeo, when the Court first tied campaign cash to
free speech, to Citizens United, when the tortured logic
reached its peak and corporations became people. The Court's
McCutcheon decision in April was the latest blow, further
opening the floodgates for wealthy individuals to donate to an
unlimited number of candidates. At this point, five
conservative Justices have said preventing outright bribery is
the only legitimate basis for regulation.
This is not about free speech, and the American people know
it. It is about wealthy interests trying to buy elections, in
secret, with no limits, period. Because the speech we are
talking about here is not free, Citizens United and McCutcheon
are not about the grassroots small donor. It is about the big
guys, the really big guys--billionaires and millionaires.
Politico reporter Ken Vogel has come out with a book about
the new era of campaign spending. He calls the book ``Big
Money.'' He reports that outside groups, super PACs, and other
independent outfits spent $2.5 billion in the 2012 campaign.
Open a newspaper. We are seeing more and more political
coverage about which billionaires are spending tens of millions
of dollars on the political system. This is all coming at the
expense of middle-class citizens and the challenges they face.
It is a broken system based on a flawed premise that spending
money on elections is the same thing as free speech.
There are only two ways to fix this: the Court overturns
Buckley, which is not likely, or amend the Constitution to
overturn previous misguided Court decisions and prevent future
ones. That is why I built on bipartisan efforts going back
decades and introduced S.J. Res. 19 last June to restore the
historic authority of Congress to regulate the raising and
spending of money for Federal political campaigns. This would
include independent expenditures and would allow States to do
the same at their level. It would not dictate any specific
policies or regulations, but it would allow Congress to pass
sensible campaign finance reform laws that withstand
constitutional challenges.
We are seeing momentum. S.J. Res. 19 was just reported by
the Judiciary Committee last month. It now has 46 cosponsors.
And a companion measure has been introduced in the House with
more than 110 cosponsors. I will continue to push for a
constitutional amendment. We need comprehensive reform, but
then in the interim we also need to follow the money, which is
exactly what Senator Whitehouse and the DISCLOSE Act intend to
do.
The DISCLOSE Act of 2014 asks a basic and more than fair
question: Where does the money come from, and where is it
going? The American people deserve to know who is spending all
this money to influence their vote, and they deserve to know
before, not after, they head to the polls. That is what the
DISCLOSE Act will achieve. It is practical, sensible, and long
overdue. We have a broken system. McCutcheon is the latest
misguided decision. It will not be the last. Congress needs to
take back control by passing a constitutional amendment. We all
know that it will take time. In the meantime, the checkbooks
will be out, the money will keep flowing. We should pass the
DISCLOSE Act.
Billionaires may keep spending, but they cannot keep
hiding. Americans are losing faith in our electoral system.
There is just too much money hidden in the shadows. It is time
to restore that faith. The DISCLOSE Act is a step in the right
direction.
You know, it was said here several times over and over
again that somehow this is about free speech. What DISCLOSE is
about is the basic core principle of the voters knowing where
the money is coming from. Hundreds of millions of dark money--
and I see a chart here on the table that I know Senator
Whitehouse is going to talk about. Hundreds of millions of dark
money in 2012 and in 2010 are infiltrating the system. Nobody
knows who gives that money except the billionaires and
millionaires who are doing it.
So thank you, Senator Whitehouse, for being here today, and
thank you very much, Chairman King, for holding this very, very
important hearing on our democracy.
Senator King. Thank you, Senator Udall.
We have two panels today. The first is Senator Whitehouse,
who is the principal sponsor of the DISCLOSE Act, and he has
been involved in this issue for some years. And, Senator
Whitehouse, we look forward to your testimony.
STATEMENT OF THE HONORABLE SHELDON WHITEHOUSE, A UNITED STATES
SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. Thank you very much, Chairman King and
Ranking Member Roberts, for convening this important hearing on
the need for public disclosure of who is behind the funds
raised and spent to influence Federal elections, not to silence
or limit that speech, to be clear, just to have the public know
who is behind the funds raised and spent to influence Federal
elections.
I am pleased to testify about the DISCLOSE Act, which I
introduced with 50 colleagues last month, to end the toxic
scourge of massive, undisclosed spending in elections, a
scourge that is undermining public faith in our democracy,
happily for the special interests who want to pull strings
behind the scenes and who profit from a discouraged citizenry.
The Supreme Court's 2010 Citizens United decision opened
the floodgates to unlimited corporate in elections. Every day
it becomes clearer that this decision will go down as one of
the Court's worst, like such discredited rulings as Lochner v.
New York. Citizens United is so far the crowning achievement of
a set of politicized, activist judges who are acting, to quote
Justice Breyer, ``like junior varsity politicians.''
This term's McCutcheon decision, which struck down
aggregate limits on individual donations, has compounded the
need for this transparency. This year, the toxic influence of
Citizens United can be seen in the country's most competitive
Senate races. According to the Wesleyan Media Project, roughly
90 percent of all television ads in both the Michigan and North
Carolina Senate races have been run by outside groups. Many of
these independent groups mislead voters and give no clear idea
of who is supporting or opposing the candidates.
When groups can run ad campaigns without disclosing their
true identities, they freely resort to vicious and dishonest
attack ads with no fear of anyone being held accountable for
those claims.
The DISCLOSE Act would help rein in what one Kentucky
columnist has dubbed this ``Tsunami of Slime.'' The bill, which
is unchanged from the version introduced in July 2012, would
require organizations spending money in elections, including
super PACs and tax-exempt 501(c)(4) groups, to promptly
disclose donors who have given $10,000 or more during an
election cycle. The bill includes robust transfer reporting
requirements to prevent political operatives from using shell
corporations to hide donor identities. Provisions such as the
high disclosure threshold protect membership organizations from
having to disclose their member lists and allow organizations
to exempt donors who do not wish their contributions to be used
for political purposes.
We do have to do this together. We tried to get this
legislation passed in 2010, and Republicans filibustered. We
tried again in 2012, and again Republicans filibustered. It
will take Republicans to join us to get this done.
There is a chance of that. It was not too long ago that
Republicans supported disclosure. Here is what Republican
colleagues have said about disclosure in the past:
``I do not like it when a large source of money is out
there funding ads and is unaccountable,'' one said.
As another put it, ``I think the system needs more
transparency so people can more easily reach their own
conclusions.''
A third colleague summed it up nicely: ``Virtually
everybody in the Senate is in favor of enhanced disclosure,
greater disclosure. That is really hardly a controversial
subject.''
Leader McConnell back in the day said, ``Virtually
everybody in the Senate is in favor of enhanced disclosure.
Public disclosure of campaign contributions should be
expedited,'' he said, ``so voters can judge for themselves what
is appropriate.''
They were right then, and Americans know it now.
Americans of all political stripes are disgusted by the
influence of unlimited, anonymous cash in our elections and by
campaigns that prize billionaire backers and secretive slush
funds. We need to pull together and solve this.
Passing the DISCLOSE Act would at least make transparent
the anonymous money pouring into elections and would signal to
the American people that Congress is committed to fairness and
openness. As a Republican former Federal Election Commission
Chairman, Trevor Potter, has said, this bill is, and I will
quote him, ``appropriately targeted, narrowly tailored, clearly
constitutional, and desperately needed.''
In 2010 we came within one vote in this chamber of passing
the DISCLOSE Act. This year, let us redouble our efforts to
contain the damage done by Citizens United with transparency.
We must preserve Government of the people, by the people, and
for the people from this tide of unlimited, unaccountable, and
anonymous money polluting our elections from this tsunami of
slime.
Thank you very much, Mr. Chairman. Thank you for the
opportunity to testify.
Senator King. Thank you, Senator Whitehouse. I appreciate
your testimony, and I appreciate your sponsorship and strong
support of this legislation.
I would like to ask our second panel to take their seats at
the table, please. We will now hear from our second panel.
First, Ms. Heather Gerken, who is the J. Skelly Wright
Professor of Law at Yale Law School and a Commissioner on the
Bipartisan Policy Center's Commission on Political Reform.
And, second, Mr. Bradley A. Smith, Chairman of the Center
for Competitive Politics.
I see that Senator Schumer, the Chair of the Committee has
joined us. Senator Schumer?
Chairman Schumer. Yes, I was going to congratulate Senator
Whitehouse on his great work here, so I will do that and now
turn it back over to you, Mr. Chairman. And I will be back in a
minute.
Senator King. Thank you.
And Mr. Daniel Tokaji, the Robert M. Duncan/Jones Day
Designated Professor of Law at the Ohio State University,
Moritz College of Law, was planning to be here today, but a
plane delay has kept him from joining us. But his testimony
will be inserted into the record. He will be available to
answer questions for the record.
[The prepared statement of Mr. Tokaji was submitted for the
record:]
Senator King. Thank you both for joining us today, and I
would like to ask each of you to limit your statements to 5
minutes, and then we can ask questions. And I know that you
both have submitted longer written statements, which will be
submitted into the record of the Committee, without objection.
Ms. Gerken, could you proceed, please? You need to press
the button, I think, to start your microphone.
STATEMENT OF HEATHER K. GERKEN, J. SKELLY WRIGHT PROFESSOR OF
LAW, YALE LAW SCHOOL, NEW HAVEN, CONNECTICUT
Ms. Gerken. Thank you very much, Chairman King and Senator
Roberts.
Robust disclosure mechanisms are an essential foundation
for any campaign finance system, and ours are neither adequate
nor effective. Dark money flows freely through the system and
grows in significance each election cycle. The need for
adequate disclosure mechanisms has become even more important
as the Supreme Court dismantles much of our current campaign
finance system, leaving American politics even more vulnerable
to money's hidden influence than before.
I want to make three points today.
First, disclosure rules have garnered considerable
bipartisan support, and with good reason. Disclosure sits at
the sweet spot in policymaking, where democratic idealism and
political realism meet. These rules provide the American people
with the information they need to make informed decisions
without placing restrictions on where and how donors spend
their money.
As a result, outside of Washington's tight circles,
transparency measures enjoy a high level of support among
policymakers, academics, and the American people.
As one of the 29 Commissioners on the Bipartisan Policy
Center's Commission on Political Reform, which was chaired by
Senators Trent Lott, Olympia Snowe, and Tom Daschle, Secretary
Dan Glickman, and Governor Dick Kempthorne, I witnessed
firsthand what happens when a bipartisan and savvy group
debates about transparency.
After a lively debate, the Commission recommended the
disclosure of ``all political contributions, including those
made to outside or it groups,'' and I would like to emphasize
that it did so unanimously.
My academic work has also convinced me of the importance of
robust disclosure rules. What I have called ``shadow parties''
have emerged--independent organizations like 501(c)(4)s and
super PACs that exist outside of the formal party structures
and closely cooperate with campaigns even if they do not, as a
legal matter, coordinate with them. These shadow parties enjoy
substantial advantages over the formal parties in terms of
fundraising capacity. But many--specifically, 501(c)(4)s--also
offer donors another significant advantage: anonymity.
These shadow parties are shifting the center of gravity
away from the formal party apparatus into private and non-
transparent organizations. An important report authored by
Professor Tokaji and Renata Strause offers compelling evidence
of the new problems associated with this regime, and I would be
happy to discuss that during questions and answers.
Second, transparency mandates stand on firmer
constitutional footing than any other type of campaign finance
regulation. Do not let cases from the 1950s, when lynching and
murders occurred, mislead you. While the First Amendment limits
Congress' ability to regulate campaign finance generally, the
Court has concluded that transparency rules promote First
Amendment values by providing Americans with the information
they need to evaluate the ads that they watch. With the
exception of Justice Thomas, the Justices who are the most
skeptical of campaign finance regulations generally have
consistently voted to uphold transparency measures and have
authored many of the touchstone opinions in this area.
Finally, there are a variety of models for ensuring that
disclosure requirements remain robust and efficacious over many
election cycles. Wade Gibson, Webb Lyons, and I have proposed a
new one aimed at the central problem in campaign finance law
which Senator Roberts mentioned, which is keeping up with the
ever changing strategies that donors use to conceal their
influence. Whenever regulations make it harder for wealthy
donors to fund politics through one outlet, they tend to find
another. And Congress and the FEC have long struggled with this
question as each new election cycle new organizations emerge.
We think of it as the carnival equivalent of Whack-A-Mole.
Our proposal avoids what Senator Roberts is worried about,
which is the Whack-A-Mole problem because it regulates the ad,
not the organization. Rather than trying to guess which
organizations will emerge in the next campaign cycle, we offer
a very simple fix. Any advertisement funded, directly or
indirectly, by an organization that does not disclose its
donors must simply acknowledge that fact with a truthful
disclaimer: ``This ad was paid for by X,'' which does not
disclose the identity of its donors.
The fix is universal and flexible enough to accommodate
changes in future election cycles, and because it offers
universal disclosure, it guarantees that regulations will keep
pace with politics.
For all these reasons, now is the right moment for Congress
to pass new disclosure requirements. This is one of the rare
instances where the need for change is significant, the time is
ripe, and the American people are ready.
Thank you very much.
[The prepared statement of Ms. Gerken was submitted for the
record:]
Senator King. Our next witness is Mr. Brad Smith, Bradley
Smith, who is the Chair of the Center for Competitive Politics.
Mr. Smith, we are delighted to have you here. I read your
testimony in full, and I must say very impressive and
thoughtful testimony. I appreciate the effort that you have put
forth to discuss this issue with us. Mr. Smith?
STATEMENT OF BRADLEY A. SMITH, CHAIRMAN, CENTER FOR COMPETITIVE
POLITICS, ALEXANDRIA, VIRGINIA
Mr. Smith. Thank you, Mr. Chairman, for your kind words,
and thank you, Senator Roberts, as well.
Let us start with the basic fact. There are currently more
laws mandating public disclosure of politically related
spending than at any time in our Nation's history. None of
these disclosure laws have been altered in any way by the
Supreme Court in Citizens United, in McCutcheon, or in any
other decision. Candidates, political parties, PACs, super PACs
already disclose all of their donors and expenditures beyond
the most de minimus amounts. Federal law also requires
reporting of all independent expenditures over $250 and of all
``electioneering communications'' of over $10,000, including
the names of donors who contribute for those purposes. This
information is all publicly available on the FEC Web site. 527
organizations that are not State- or FEC-registered PACs also
report all donors to the Internal Revenue Service, which makes
that information available to the public.
Additionally, the FCC requires broadcast ads to include the
identity of a spender to be made public within the ad itself
and requires further information to be made available through
the political file each station is compelled to maintain.
Given this extensive disclosure regime, it is simply a
misnomer to talk of dark money or non-disclosing groups.
Rather, what we have is a system in which some politically
related spending occurs with less information than some people
would like about the spenders' members, donors, and internal
operations.
Assuming that this is a problem, the question is how big a
problem is it. The FEC reports that $7.3 billion was spent on
Federal races in 2012. Approximately $311 million of that was
spent by organizations that did not itemize and disclose all of
their donors; that is, a bit under 4.5 percent of total
spending came from groups that did not itemize their donors.
Even this number tends to overstate the issue because many
of these groups are well known to the public, groups such as
the League of Conservation Voters and the United States Chamber
of Commerce. But some still ask, Why not seek still more
information? Why not dig further into the disclosure well?
Well, there are several reasons.
First, studies show that compulsory disclosure
disproportionately limits smaller grassroots organizations,
particularly organizations that rely on volunteers. This is
simply because of the regulatory compliance issues.
Second, transfer provisions of the DISCLOSE Act would
create a fundraising nightmare for nonprofits, even those that
do no political work at all, hindering general nonprofits'
social welfare activity in society at large.
Third, the DISCLOSE Act creates a great deal of junk
disclosure. Much of the disclosure required by the act would
actually confuse the public. It would be unfair to persons who
would have their names attached to speech they did not intend
to or did not actually fund, and it would be misleading as to
the amounts actually spent on political activity by requiring
double, triple, and even more frequent counting of the same
money.
Finally, we cannot overlook the costs in privacy that come
with excessive compulsory disclosure, costs which have led the
Supreme Court to repeatedly strike down excessive disclosure
laws, including in the 1970s, 1990s, and 2000s. DISCLOSE, if
passed, will certainly be challenged on constitutional grounds.
But even if it were to withstand those challenges, this body
should recognize and show consideration for the privacy and
other interests that would justify such a challenge. The
purpose of disclosure is to allow citizens to monitor their
Government. It is not to allow the Government to monitor the
political activity of its citizens.
As the ACLU has put it, ``Absent anonymity, some donors on
both the left and right will simply not donate out of a
legitimate fear that they will be harassed or retaliated
against for their advocacy.''
We cannot have a serious hearing today without recognizing
the cost that compulsory disclosure has for unpopular speakers
and new, often unpopular, ideas--that may in later years become
quite popular, as was the case with abolition or more recently
same-sex marriage. The CEO of a consumer business in West
Virginia or Kentucky who believes that coal should be more
heavily regulated; the small-town Alabama businessman who wants
to fund a suit by the ACLU challenging prayer in the area's
public schools; a Montana businesswoman who favors gun
control--these people should not be compelled by the Government
to put forward information that will lead others to boycott
them and destroy their businesses.
Rightly or wrongly, and regardless of what some members of
this panel may want to hear, millions of Americans already
believe that their Government is inappropriately spying on
them. Tens of millions of Americans do believe--and I think
there is enough evidence that this is hardly irrational, even
if some think it is incorrect--that the IRS is being used as a
tool to harass points of view that are critical of the current
Executive. There are millions of Americans who hear a Senator
publicly call for criminal prosecutions of political activity,
and they see themselves as the intended target of that
Senator's wrath.
Too often today, disclosure is not used to evaluate
messages; rather, people admit that they openly hate the
message and seek to use disclosure to stop the speech
altogether. As one organizer stated a while back, years ago we
would never have been able to get a blacklist together so fast
and quickly. Thanks to compulsory disclosure and computers, it
is much easier to blacklist fellow Americans than in the past,
but many Americans will not see this as progress.
Frankly, the approval of this bill is unlikely to improve
trust in Government precisely because many people do not trust
the Government now. If you wish to increase that trust and
create a climate in which serious improvements, bipartisan
improvements in disclosure laws can be considered, then you
must at least appear to take seriously the fact that the
Inspector General for Treasury has found that the IRS targeted
speakers on the basis of their political activity, that the key
IRS employee involved has pleaded the Fifth Amendment and
similarly lost a large cache of e-mails in what a poll shows a
substantial majority of Americans believe are highly suspicious
circumstances.
We must stop proposing to amend the Constitution for what
appears to millions of Americans to be nothing more than short-
term partisan gain, and we must no longer tolerate the
disgraceful, ongoing vilification on the floor of the United
States of individual citizens because of their lawful political
activity.
In other words, if we wish to create improved trust in
Government and create a climate favorable to meaningful and
serious revision of disclosure laws, we must first act within
this body to create a climate of trust. This bill is not
helpful.
Thank you.
[The prepared statement of Mr. Smith was submitted for the
record:]
Senator King. Thank you, Mr. Smith.
We will have 7-minute rounds and questions for both
witnesses.
Ms. Gerken, you mentioned the NAACP case, and I believe
Senator McConnell mentioned it as well, where the Supreme Court
recognized in that case the importance of protecting donor
lists. Can you distinguish that case from the situation that we
are talking about here this morning?
Ms. Gerken. So it has always been true that the Supreme
Court has made sure that there are protections for people who
are likely to suffer a real threat of harassment, and the case
involving the NAACP is, of course, the quintessential version
of that. We all know what was going on in the Deep South in the
1950s. It was a dangerous time to be seen as donating and
supporting the NAACP.
The Supreme Court continues to reaffirm that precedent, so
anyone who is concerned about this level of harassment need
only show a reasonable probability of harassment.
What we have not seen, however, is many people succeeding
under these standards. The National Socialist Workers Party has
done so, but in two recent high-profile cases, which are often
invoked as examples of harassment, when Federal courts look at
the facts, they have concluded that that level of harassment is
not actually a problem. People taking signs off of your
doorstep, and mooning on one occasion someone, does not
constitute a sufficient harassment to undermine disclosure
rules.
And I should just note that oftentimes when people talk
about what constitutes harassment, they talk about consumer
boycotts. If we are going to talk about the civil rights
movement, we should remember, consumer boycotts have long been
a robust and treasured tool of those who believe in the First
Amendment and use their power as consumers in order to pursue
their aims.
So harassment of the sort that the National Socialist
Workers experienced is grounds for suspending disclosure rules.
Harassment of the sort that we have seen in recent years has
not been.
Senator King. Thank you.
Mr. Smith, you talk very movingly about the plight of the
small donor, but doesn't this bill only apply to $10,000 and
above? I would not call that necessarily a grassroots donation.
Isn't there a distinction to be had? This bill that is before
us has a $10,000 and above cutoff and does not deal with small
contributions.
Mr. Smith. Well, obviously most Americans cannot afford to
contribute $10,000 to any type of cause. However, millions of
Americans can, and in fact do, and they often speak for other
Americans of more modest means who share their points of view.
And many of these people I think will be dissuaded from
participating in the system.
The academic literature is really pretty clear on this that
disclosure does dissuade people from spending--not everybody,
not most people, but it does discourage some people from
participating in campaigns.
Senator King. But what about the issue of information? Part
of the--it goes back to the beginning of the country. It goes
back to the statement that Chief Justice Roberts made in
McCutcheon, that knowing who is doing the talking is part of
the information voters need in order to assess the message.
Isn't that a legitimate public interest?
Mr. Smith. I think that is, and I think that is why we have
as much disclosure as we have. But the Court has never
approved, for example, it has never given its blessing to
something like this act. It might do so if given this act, but
there is good reason to think that it would not. Again, in
Buckley v. Valeo, for example, it vastly trimmed down the
disclosure statutes, in McIntyre v. Ohio Election Commission.
And so I think that we cannot assume that the Court is going to
approve this, and there are reasons why we should be hesitant
about it. What we see more and more now is that, as I
mentioned, people are not saying, ``Boy, I need to understand
this ad.'' Rather, people are saying, ``I hate that speech. I
want to stop that speech.''
A group called ``Media Matters'' is out raising funds
specifically promising to distort and harass people's speech,
i.e., their giving and the speech that it funds, in order to
gin up public backlash against them and ``dissuade'' them from
participating. And I do not think Congress should be a party to
forcing people to provide information that their political
opponents will use to harass and vilify them and try to
dissuade them from participating in democracy.
Senator King. Well, on the constitutional question, the
issue of disclosure was specifically endorsed very strongly by
both Kennedy in Citizens United and Roberts in McCutcheon, and
it was not a minor matter because Justice Thomas dissented on
that issue. So it clearly looks to me like eight members of the
Supreme Court have asked us to enact greater disclosure
requirements because that is the only thing left after they
have dismantled the other protections. They have said it is
okay that we are doing this because we have disclosure, which,
of course, we do not.
Mr. Smith. Well, I think that that would be something that
you would undertake at your peril. I mean, they have not
endorsed this particular item. What they have said is we have a
disclosure regime and that is adequate. They have not said if
Congress did more we would have an adequate disclosure regime.
They have specifically talked about what we have on the books
and viewed that as significant enough.
It is true, however, that I think the courts--let us put it
this way: Without those statements, I would tell you flat out I
think this bill is unconstitutional, and I can only tell you
that there would be a serious challenge made to it. We should
remember, though, that anonymity has a long history in the
United States, from the Federalist Papers; former Chief Justice
John Marshall used to fund anonymous political speech; Thomas
Jefferson used to fund anonymous political speech; Abraham
Lincoln used to fund anonymous political speech. We know that
now only years after their death, and we should be aware that,
again, you can dissuade and discourage people from speaking,
and we need to be sensitive to that. And I think at this point
we have a great deal of disclosure, and one of the reasons
people are hostile to the idea of extending it further is that
they see this as a partisan effort and they see the IRS
investigations and they say this is exactly why I do not want
to disclose.
Senator King. I can assure you that this Senator does not
view this as a partisan issue. As I said in my opening
statement, I think this is a democracy issue. And all we need
is a couple of liberal billionaires to start spending in a way
that others are, and suddenly you would see a change in the
atmosphere around here.
Ms. Gerken, Professor Gerken, is there a disclosure
problem? Mr. Smith makes the case that we really do not have a
disclosure problem; we have got lots of disclosure. But what
about what has been happening in the last 5 years?
Ms. Gerken. No, I appreciate Professor Smith acknowledging
what the Court said in Citizens United. I have a lot of trouble
imagining the Court finding this type of regulation to be a
problem because all it is doing is leveling the playing field.
Right now, super PACs and political parties have to do a great
deal of disclosure. No one has suggested that this violates the
First Amendment or burdens speech unduly. And so now all we are
doing is extending--all that the Congress is proposing to do is
extending this idea to organizations like 501(c)(4)s. And it is
incredibly important to do that. If you do not level the
playing field, then as we have seen over time, the (c)(4)s will
become increasingly important players because they offer
something that no one else can offer, which is unlimited
fundraising ability and anonymity in doing so.
So this is in some ways the game of regulatory Whack-A-
Mole. This is imperative. If you do not stop the money here, it
is just going to keep moving into the (c)(4)s, which is exactly
what we have seen. Between 2008 and 2012, the amount of money
spent in the system by undisclosed dark money is roughly three
times what it was before.
So this is just simply extending a set of regulations that
we have lived with for a long time that have never been subject
to any serious constitutional doubt to the new organization on
the block which is spending money in a new way in campaigns.
Senator King. Thank you.
Senator Roberts.
Senator Roberts. Well, thank you, Mr. Chairman. Thank you
both for coming and for giving excellent testimony.
Ms. Gerken, your testimony did not endorse the DISCLOSE
Act, or at least that is how I read it, but I think in terms of
your commentary, you probably support it. Do you endorse it?
Ms. Gerken. You know, actually no one has ever asked me if
I have endorsed anything because I am not a Senator. So I do
think that, one, we need more disclosure rules for the
501(c)(3)s. I think, two, this act is constitutional. It is
narrowly tailored and sensibly targeted at the right
opportunities.
Senator Roberts. So you support it.
Ms. Gerken. I would support it. If I were in your shoes, I
would vote for it.
Senator Roberts. Okay. Well, you are not in my shoes.
Chairman Schumer. Maybe one day.
Senator Roberts. They would be a little different shoes,
Mr. Chairman.
You like cowboy boots?
[Laughter.]
Ms. Gerken. I am a New Englander. We do not wear cowboy
boots.
Senator Roberts. That is part of your problem.
[Laughter.]
Senator Roberts. Your bio indicates you were a senior legal
adviser to the Obama campaign in 2008 and 2012. The President
has been criticized for attending fundraisers in the midst of a
number of international crises. Last week, he was in Manhattan
to attend a fundraiser for the House Majority PAC. That is a
super PAC dedicated to electing a Democratic majority in the
House.
The House Majority PAC is one of a number of groups that
gets support from the Democracy Alliance. Another group that
gets support from the Democracy Alliance is the Scholars
Support Network. You are a member of that. Is that correct?
Ms. Gerken. That is right.
Senator Roberts. Following its annual meeting at the Ritz
Carlton in Chicago this year, Politico reported on a memo to
the board of the Democracy Alliance that contained the
recommendations on how to deal with media inquiries about the
conference and its participants. This is what the memo said:
``As a matter of policy, we do not make public the names of
our members. Rather,'' the memo went on, ``the Alliance abides
by the preference of our members. Many of our donors choose not
to participate publicly, and we respect that. The Democracy
Alliance exists to provide a comfortable environment for our
partners to collectively make a real impact.''
Why would disclosure make some of the members of this
alliance uncomfortable?
Ms. Gerken. So I actually do not know the reason for that.
I am simply one member of the organization. But I will just say
that there is a fundamental difference between many of the
organizations that we are talking about here and those that are
trying to affect politics with large amounts of money. The
reason why----
Senator Roberts. All right. Would you----
Ms. Gerken [continuing]. Justice Kennedy----
Senator Roberts. Would you agree--I am sorry to interrupt,
but we have got 4 minutes here, although the Chairman has been
very liberal with his time allowance. Do you agree this desire
to remain comfortably anonymous should be respected?
Ms. Gerken. I will say that if you are trying to use large
amounts of money to influence politics, then you should do
exactly what Justice Scalia says, which is to have the civic
courage to have your name publicly listed. And so I am in
support of this bill, and if the Scholars Strategy Network
started to try and influence politics with large quantities of
money, I would be in favor of disclosure.
Senator Roberts. Does the Scholars Support Network publicly
disclose its donors?
Ms. Gerken. I do not actually--I do not think it does, but
I do not know the answer to that question. As I said before, it
is not trying to influence----
Senator Roberts. Shouldn't that be respected?
Ms. Gerken. It is not trying to influence Federal
elections. And if it were, this bill would ensure that it, in
fact, disclosed all of the donors that were trying to do so.
That is the key to this bill. This bill allows for the privacy
of groups engaged in a variety of public-oriented activities to
remain anonymous----
Senator Roberts. All right.
Ms. Gerken [continuing]. But when they try to influence
elections, that money----
Senator Roberts. I got it.
Ms. Gerken [continuing]. And donor must be disclosed. And I
support that heartily.
Senator Roberts. I got it.
As a 501(c)(3), it is not supposed to engage in any
political activity. Is that right?
Ms. Gerken. A 501(c)(3) has--there are a variety of
requirements about 501(c)(3), about what it means. But as a
general matter, they are not supposed to.
Senator Roberts. Well, how is it then that the Scholars
Support Network has been supported by the Democracy Alliance
which stipulates that each organization it supports be
politically active and progressive?
Ms. Gerken. So the Scholars Strategy Network is a very
simple thing. It is designed to do something that academics are
very bad at, which is to figure out how to convey their ideas
to the broader public and to policymakers. You have thousands
of universities across the country generating good idea after
good idea by people who barely go outside during the day, who
have never talked to a reporter, who have certainly never
spoken to a Senator, and have no idea how to convey their ideas
in a broader way. That network is designed to take a bunch of
people who are basically nerds and help them figure out how to
convey their ideas to the real world. That is a useful----
Senator Roberts. Sort of a nerd network?
Ms. Gerken. It is a nerd network, but it is a policy-
oriented network to get ideas that are already in the public
arena to policymakers. That is a very----
Senator Roberts. I have every confidence that the Chairman
of the Committee sitting to my right gets calls a lot from
nerds and all sorts of other people. I do, even in Kansas, the
University of Kansas, Kansas State, Wichita State University.
We have got a lot of nerds. New England has nerds, don't they?
Senator King. I do not think there are any in Kansas.
Senator Roberts. I can testify there are nerds in Kansas.
[Laughter.]
Senator Roberts. What about the American Constitution
Society? At the Chicago conference it took credit for helping
to make possible the Senate rule changes imposed by the
Majority Leader that led to the confirmation of ``progressive
judges'' to the D.C. Circuit. You have also been involved with
the American Constitution Society. Is that correct?
Ms. Gerken. Yes, I have.
Senator Roberts. Do they publicly disclose their donors?
Ms. Gerken. I do not believe that they do, but they also--
if the DISCLOSE Act were passed, if they were engaged in using
large sums of money to influence politics, they would be
required to disclose their donors, and that would be a good
thing for democracy.
Senator Roberts. Well, my point is you would recognize the
Senate rules changes in the appointments to the D.C. Circuit
were somewhat politicized. Would you agree with that?
Ms. Gerken. You know, in this world almost everything is
politicized, I suppose.
Senator Roberts. I understand. Would the DISCLOSE Act apply
to 501(c)(3)s?
Ms. Gerken. The DISCLOSE Act is going to apply to any
organization that uses money to influence politics. If
501(c)(3)s are engaged in some politicking, then they do
something very simple, which is they segregate their funds.
This is a traditional strategy used by many organizations to
keep separate these two kinds of donations. That means that
donors, for example, who want to support the American
Constitution Society's general activities can give money
without having it go to politics. But if they want ACS to use
that money to influence politics, to influence the election
system, then they have to have a segregated fund. That is a
very simple--it is a simple and elegant solution to the kind of
problem that you are describing here.
Senator Roberts. I do not know--oh, I have been informed
here that it does not apply to (c)(3)s. So should it?
Ms. Gerken. So this goes back to the--if a 501(c)(3) would
like to start to influence--to do the things that are outside
the usual ambit and it starts to take in large quantities of
money that are going to be used to influence elections, then it
is going to have to disclose those activities. It would pull
itself outside of 501(c)(3)s. They would become 501(c)(4)s,
presumably.
Senator Roberts. I think you are talking about a regulatory
morass, but at any rate, thank you so much for answering my
questions.
Senator King. Thank you, Senator Roberts.
I understand a vote has just gone, and Senator Schumer
wants to have a few words, and then Senator Cruz. We will
adjourn to vote, and we will be coming back. You all will talk
among yourselves while we go and vote, and we will be back. If
you can get this settled while we are gone, that would be good.
Senator Schumer.
Chairman Schumer [presiding.] Well, thank you. And first
let me thank Senator King. He has been chairing a series of
hearings on this very important issue and has done it in his
able, fair, and independent way. So thank you very much.
First, I just wanted to note Senator McConnell came and
spoke as a member of the Committee and talked about being
against the DISCLOSE Act. I recall during the days when we
debated McCain-Feingold, Senator McConnell was a leading
advocate of disclosure and said that is what we should do, we
should not limit contributions but disclosure would be enough.
And that was true of most of my colleagues who were opposed to
McCain-Feingold from the other side of the aisle. And then, of
course, now all of a sudden they are against disclosure, and I
would argue that is for political advantage. There is no
principled reason to be against disclosure. This is a
democracy. Things are disclosed. Justice Scalia's statement
makes the same.
And I would just ask my friend Brad Smith, who I know has
been involved in this for a long time and opposed McCain-
Feingold and every other limitation on campaigns that is here,
why wouldn't the same argument apply to voting? I vote. I get
protested all the time. Some of those protests are pretty loud
and noisy and raucous. Maybe we should keep voting secret, what
our legislators do, because it might intimidate them. How can
you make the distinction between the two? Both are
participating in the political process. The public has a right
to know.
You know, for 200 years it has been regarded as progress
that there is more and more openness in Government. People
decry closed-ness in Government. In fact, there is a bipartisan
bill coming about--I think Senator Cornyn in the Republican
sponsor, along with Senator Leahy--to make Government more open
and available in terms of the bureaucracy.
It is just confounding and strikes me as perhaps self-
interested that people are actually against disclosure. There
are all kinds of arguments about limitations, what you should
limit and what you should not. And Senator Cruz and I have had
an ongoing argument about the First Amendment in this regard.
That is not what we are discussing today because, clearly, you
would say there is no First Amendment block or any sort of
First Amendment right to not disclose. Is that right? Or do you
think the First Amendment argues for non-disclosure?
Mr. Smith. Well, you have a bunch of questions, and I
appreciate it.
Chairman Schumer. Yes, so you can answer them all.
Mr. Smith. And I do want to say, by the way--and you and I
have not been face to face in, I think, 14 years, but I still
remember the great courtesy you showed to my children at my
confirmation hearing 14 years ago, and I appreciate that.
Chairman Schumer. Your kids were cute then. Now they are
probably grown up, right?
Mr. Smith. They are.
Chairman Schumer. But to parents, they are always cute,
right?
Mr. Smith. That is right.
Chairman Schumer. Okay.
Mr. Smith. You asked about voting, to begin with, and that
draws, I think, a key distinction that we make at the Center
for Competitive Policy. The purpose of disclosure is for the
public to keep tabs on its legislators, so when legislators
vote, of course, the public needs to know that. And that is why
we support disclosure of contributions to candidates, parties,
and so on.
However, when you are talking about citizens talking to
other citizens, I am less sure that there is a compelling
Government interest there. Of course, we note that another type
of voting is entirely secret. You are not required to display
your vote in any State in the United States anymore. Now,
Justice Scalia does not believe that is a constitutionally
protected right to a secret ballot, and I think he has got, you
know, a solid argument there. But as a policy matter, whether
it is constitutionally required or not, we have agreed that
people should have the ability to keep their political views
quiet. And that goes to the question, when we talk about, you
know, people are against disclosure. I think everybody is in
favor--pretty much everybody--of some degree of disclosure, and
the question is: What should be disclosed?
And I think part of the colloquy between Senator Roberts
and my colleague here relates to the question of what should be
disclosed, and Heather would say, well, if they are engaged in
political activity. But what is political activity? A great
many (c)(3) organizations, such as some of the ones Senator
Roberts was discussing, are doing things--the American
Constitution Society is clearly trying to affect how people
think about political issues, and that may ultimately affect
how those people vote.
When I was Chairman of the Federal Election Commission, I
used to note that if you tell me, you know, what groups you
want to silence, I can come up with a neutral method that will
get mainly those groups and not many----
Chairman Schumer. Well, why would disclosure silence
people?
Mr. Smith. Well, studies----
Chairman Schumer. I mean, we are a democracy here, and you
can always say that somebody could argue you are wrong. But
that is not--I mean, if you--that is the most slippery slope
argument I have heard. It just says anytime someone thinks they
might be intimidated they do not have to disclose anything.
Mr. Smith. Well, it does not necessarily go that far. But,
again, you might ask, why do we have a secret ballot? Why were
the Federalist Papers published anonymously? Why has the
Supreme Court in cases like Buckley v. Valeo, McIntyre v. Ohio
Elections Commission, Watchtower Bible & Tract v. Village of
Stratton, Thomas v. Cullens repeatedly protected citizens'
anonymity when engaged in various types of political activity?
Studies do show that disclosure, mandatory, compulsory
disclosure, has a deterrent effect on some people participating
in politics.
Chairman Schumer. But the Supreme Court--no court that I am
aware of has made the argument that there is any constitutional
requirement for that. Is that right?
Mr. Smith. Well, the Court has repeatedly struck down
overly broad disclosure laws. Whether it would strike this
down----
Chairman Schumer. But not on a First Amendment basis.
Mr. Smith. But I have to say, Senator----
Chairman Schumer. Right? Is that right? Not on a First
Amendment basis?
Mr. Smith. No. On First Amendment grounds, it has narrowed
statutes or struck them down. And I have to say, Senator, that
you yourself, when you earlier introduced a version of this
act, you stated that, ``The deterrent effect should not be
underestimated.'' So I think you do recognize that there can be
a deterrent effect.
Chairman Schumer. Oh, let me tell you, I think it is good
when somebody is trying to influence Government for their
purposes, directly, with ads and everything else. It is good to
have a deterrent effect. If you cannot stand by publicly what
you are doing, then you probably think something is wrong.
Mr. Smith. So----
Chairman Schumer. I do not think you are afraid of being
protested or picketed or something like that.
Mr. Smith. So the author of ``Common Sense,'' the authors
of the Federalist Papers----
Chairman Schumer. You know, we did not have a democracy
then. That is not fair. The British were running the show. Tom
Paine was worried he would be arrested. We are not worried that
if you publish something here in America you would be arrested.
Mr. Smith. Well, I can only, again, go back to saying that
a great many people feel that they have fears of excessive
disclosure, that the Supreme Court has recognized this in many,
many contexts, including the context of political giving. And I
think it is common sense to all of us that there are times when
one would rather not have to be publicly identified with
certain political views, such as, again, the examples I gave in
my testimony. For example, a person, a small business owner in
Kentucky or West Virginia who favors increased regulation of
the coal industry might be very concerned about what that could
do to his business if he were to voice those views.
Chairman Schumer. Well, but different if he gives money to
a political campaign to influence the candidate. The disclosure
here is not based on what we should know about the individual
but the effect on an elected official, and that is the
distinction that I think you sometimes fail to make.
Mr. Smith. But if he gives money----
Chairman Schumer. I will give you the last word before we
are out of time.
Mr. Smith. If he gives money to a political campaign, then
it is disclosed. It is only--we are talking about giving money
to a nonprofit (c)(4) at this point.
Chairman Schumer. Okay. I want to thank the witnesses. We
are going to be in temporary recess, and Chairman King will
come back, and I guess Senator Cruz will come back. Thank you
both.
[Recess.]
Senator King [presiding.] The hearing will resume. The
hearing of the Rules Committee on the DISCLOSE Act will resume.
Senator Cruz, your questions.
Senator Cruz. Thank you, Mr. Chairman, and I want to say
thank you to both the witnesses for joining us today.
You know, before we broke, I thought the exchange with
Senator Schumer was actually quite revealing where Senator
Schumer asked Mr. Smith, well, gosh, why can't we restrict the
freedom of American citizens? Because, after all, when Members
of Congress vote, our votes are public. And I think that really
reveals the issue here, that the votes of Members of Congress
are public because we are supposed to be public servants. We
are supposed to be accountable to the American people. And
indeed what this effort is about and what much of the efforts
of this Senate is about is trying to have politicians hold the
American people accountable, which is backwards from the way it
is supposed to work.
Jefferson famously said when leaders fear the citizens,
there is liberty; but when citizens fear their leaders, there
is tyranny.
We are just a few months away from an election, and so
often Congress will devolve into the silly season where we will
have a series of votes that are not intended to pass but are
intended somehow to be messaging votes because the majority
party thinks it will be beneficial for the upcoming election.
Related to this legislation is a proposal that has been
voted on by the Senate Judiciary Committee that 47 Democrats
have put their name to a constitutional amendment that would
repeal the free speech provisions of the First Amendment. It is
the most radical legislation the Senate has ever considered.
In 1997, when the Senate considered a constitutional
amendment along similar lines, then-Senator Ted Kennedy said
the following: ``In the entire history of the Constitution, we
have never amended the Bill of Rights, and now is no time to
start.''
I emphatically agree with Senator Ted Kennedy.
Likewise, Senator Russ Feingold, not exactly a right-wing
conservative, said the following: ``Mr. President, the
Constitution of this country was not a rough draft. We must
stop treating it as such. The First Amendment is the bedrock of
the Bill of Rights.'' And he continued, in 2001, ``I want to
leave the First Amendment undisturbed.''
For 47 Senators to put their name to a constitutional
amendment that would repeal the free speech protections of the
Bill of Rights is astonishing. And it ought to be disturbing to
anyone who believes in free speech, to anyone who believes in
the rights of the citizenry to express their views and
politics.
And, Mr. Smith, I want to ask a question to you: At the
Constitution Subcommittee's hearing on that proposed national
amendment--I am the Ranking Member on that Subcommittee; the
Chairman is Senator Durbin--I asked Chairman Durbin three
questions about the amendment that he had introduced.
The amendment, by the way, provides that Congress can put
reasonable restrictions on all political speech.
I would note, by the way, the First Amendment right now
does not entrust determinations of reasonableness to Members of
Congress. Congress thought the Alien and Sedition Acts were
reasonable, and indeed the heart of the First Amendment is
about protecting unreasonable speech, not reasonable speech.
When the Nazis wanted to march in Skokie, Illinois, Nazi
speech is the very definition of unreasonable speech. It is
hateful, bigoted, ignorant, and yet the Supreme Court rightly
said the Nazis had a First Amendment right to express their
hateful, bigoted, ignorant, unreasonable speech. And then all
of us have a constitutional right, and I would say a moral
obligation, to denounce that speech, because as John Stuart
Mill said, the best cure for bad speech is more speech, not
restricting it.
So the three questions that I asked Chairman Durbin, I
said: Do you believe Congress should have the constitutional
authority to ban movies? Do you believe Congress should have
the constitutional authority to ban books? And do you believe
Congress should have the constitutional authority to ban the
NAACP from speaking about politics?
And what I observed is that for me the answer to all those
three questions is easy: Absolutely no, in no circumstances.
And yet in the amendment that every single Senate Democrat on
the Judiciary Committee voted for, Congress would have the
constitutional authority to do all three of those.
My question to you, Mr. Smith, is: What is your view of the
dangers of giving Congress the constitutional power to ban
movies, to ban books, and to ban groups like the NAACP from
speaking about politics?
Mr. Smith. Well, thank you, Senator. You know, I think the
danger is obvious, and it goes to the core of why we have a
First Amendment. And you have hit the point I think very well
when you said, you know, the precise idea of the First
Amendment is to prevent Congress from deciding what is
reasonable. There is a view that this was too dangerous a power
to cede to the Government.
During the first panel, Senator Whitehouse mentioned that
he did not want to dissuade anybody from speaking; he just
wanted to have people disclose their information. But if you
look at, for example, this bill, many parts of it require a
regulatory regime that will dissuade people from speaking,
including the possibility of prosecution if people make
mistakes in knowing what other folks they are going to give
money to will do. And Senator Whitehouse has been very vocal in
urging criminal prosecutors against political speakers.
So, you know, I think the First Amendment is there
precisely to say this is just too dangerous a power to give to
the Government. As Chief Justice Roberts said in the McCutcheon
decision, the last people we want deciding, you know, who needs
to speak more or who needs to speak less in a campaign or what
is reasonable regulation is the Government itself, the people
who have a vested interest in being returned to office.
And as I have often pointed out, even assuming the good
faith of all actors, if rules and regulations tend to favor the
party in power and the incumbents, then they will remain in
place. And if they tend to disadvantage those people, then they
will be changed. So we do not have to assume bad faith to see
the danger in giving Government that kind of power.
Senator Cruz. Well, and we have seen--in the Senate
Judiciary Committee there were some Democratic cosponsors of
the amendment who said, ``It is not our intention to ban movies
or ban books or ban the NAACP from speaking.'' And at that
hearing I observed this is the Judiciary Committee of the
United States Senate. The inchoate intentions of members of
this Committee that may be buried in their hearts are not
terribly relevant when 47 Senators are proposing a
constitutional amendment to the Bill of Rights that would
explicitly, under the language of the amendment, give Congress
the power--and the amendment says--``to prohibit speech from
any corporations.'' Paramount Pictures is a corporation. Under
the language of that amendment, you could prohibit Paramount
Pictures from publishing a movie critical of a politician.
Indeed, Citizens United, which is the subject of so much
demagoguery, was the Federal Government trying to find a movie
maker who dared to make a movie critical of Hillary Clinton. I
think the movie maker has a constitutional right to do so, just
like Michael Moore has a constitutional right to make movies
that I think are pretty silly, but he has got a constitutional
right to continue to make them for all time.
As regard to books, Simon & Schuster is a corporation.
Under the text of the constitutional amendment, Congress could
prohibit Simon & Schuster from speaking. As the ACLU said--for
those of you who are here today who may say, ``Well, Cruz is a
Republican. I am skeptical of what Republicans say.'' If you
are skeptical of what I say, perhaps you are not skeptical of
the ACLU. The ACLU said in writing, this amendment would
fundamentally abridge the free speech protections of the First
Amendment, and they said it would give Congress the power to
ban Hillary Clinton's book, ``Hard Choices.''
There is a reason that I have referred to the proponents of
this amendment as the ``Fahrenheit 451 Democrats,'' because
they are literally proposing giving Congress the power to ban
books. That ought to trouble everyone.
And with respect to the NAACP and La Raza and the Human
Rights Committee and Sierra Club and Planned Parenthood, who
are all corporations--and they should not be prohibited from
speaking--we should be empowering the free speech of the
citizens, not empowering the IRS and Congress and Government to
silence and regulate the speech of the citizenry.
Thank you, Mr. Chairman.
Senator King. Thank you, Senator.
As one of the sponsors of that amendment, I am not sure we
are talking about the same document, because the one I sponsor
talks about regulating campaign contributions. It does not talk
about banning books or movies or in any way abridge the free
speech. But I am sure that is a debate that you and I can have
at a later date. Thank you for your questions.
Senator----
Senator Cruz. Mr. Chairman, just in response to the
question you ask, I would note that the text of the amendment
says, ``Congress and the States shall have the power to
implement and enforce this article by appropriate legislation,
and may distinguish between natural persons and corporations,
or other artificial entities created by law, including by
prohibiting such entities from spending money to influence
elections.'' And since book publishers are almost always
corporations, under the explicit text of that constitutional
amendment, Congress would have the power to prohibit
corporations like Simon & Schuster from publishing books, which
I would note is exactly what the ACLU said in response to it as
well.
So that is the plain text of the amendment that has been
introduced, and I think it is a very dangerous suggested
addition to the Bill of Rights of our Constitution.
Senator King. A discussion which we shall undoubtedly
continue at a later date. Thank you, Senator.
Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman. Thank
you to our witnesses. Good to have you back, Ms. Gerken. I
remember the hearing that I chaired. You did a good job.
Ms. Gerken. Thank you very much for having me again.
Senator Klobuchar. Okay. Very good. Thank you, Mr. Smith.
Mr. Smith goes to Washington. You can say that now, I guess, at
the hearing. That was a little joke.
It is good to be here. Obviously Senator Cruz and I
disagree, and I wanted to refocus this, first of all, on the
bill before us, the DISCLOSE Act, which, it is my
understanding, having looked at these cases, the Supreme Court,
the Roberts Court, actually anticipated that we might have some
limits on disclosure and that those would not be allowed. Is
that right, Ms. Gerken?
Ms. Gerken. Yes. In fact, I actually think it would be fair
to say that Citizens United at least was premised on the idea
that there would be adequate disclosure. So Justice Kennedy,
the author of the opinion, notes that as long as you have
adequate disclosure, you need worry much less about independent
expenditures. What Justice Kennedy may not have contemplated
was the possibility that $310 million in the last election
cycle was being spent independently by groups that were not
disclosing the identity of their donor.
But Kennedy was absolutely clear that disclosure promotes
First Amendment values, the ability of everyday people to make
decisions to hold their representatives accountable. That is
why disclosure rules are consistent with the First Amendment.
Senator Klobuchar. So he specifically used the words
``disclosure rules'' in the opinion?
Ms. Gerken. He not only specifically used the words. He
actually specifically affirmed them and rejected the kinds of
challenges that have been levied against the DISCLOSE Act by
noting that because disclosure rules are not stopping someone
from spending their money and are not putting the kinds of hard
caps on that you see in other parts of the campaign finance
regime, that they are subject to a much more generous
constitutional standard, that Congress has much more leeway to
impose them, precisely because they further First Amendment
values rather than undermine them.
Senator Klobuchar. And I bring this up because Senator
Cruz's long speech there was mostly focused on the
constitutionality of this. First of all, he was talking about
the amendment, which I support, and I will get to that maybe a
little later, but this is about the DISCLOSE Act today. And
that the Court clearly contemplated the DISCLOSE Act--the
disclose rules--I am not going to say this act--that rules
could be constitutional.
Ms. Gerken. Yes, exactly. And if you begin to sort of think
a little bit about the sorts of arguments that are being made
against the constitutionality of this provision, of this act,
they would, I would think, also prevent you from regulating
super PACs and the political parties. That is, there are all
sorts of instances where we require donors to have the civic
courage to acknowledge that they have given money to support a
political candidate or influence elections. And that is all
that the DISCLOSE Act does. It levels the playing field,
subjecting (c)(4) organizations, which have become immensely
powerful in the elections process, to the same kinds of
regulations we see for super PACs and parties.
Senator Klobuchar. Which have been allowed as reasonable
limits in the past.
Ms. Gerken. I mean, the statement--the kinds of arguments
that would be made that would knock those down are so radical
that----
Senator Klobuchar. That you would not be able--that they
could not go after you for yelling ``Fire'' in a theater.
Ms. Gerken. Well, I will just say that the First Amendment
law that exists on the books, written by the Justices who have
been the most skeptical of campaign finance regulation, have,
with all but one exception--eight of them have affirmed these
kinds of disclosure rules, and with good reason.
Senator Klobuchar. Good. Well, then, let us go from there.
What I am concerned about here--and I talked about it when
you were here; I talked about it at the Judiciary Committee--is
just the fact that, in fact, the situation we have now with
these hundreds of millions of dollars drowns out the speech of
regular people so that they cannot speak because they are not
going to be able to have a voice if you have a regular person
running for office that basically cannot bring in millions into
the campaign, has to raise money, let us say they do what they
are supposed to, I know what this was like, calling, calling,
calling, raising $500, raising $1,000, and then all of a sudden
someone could just come in and plow in hundreds of millions of
dollars, or in the case, I think, of some of these recent
races, $25 million so far against individual candidates, to the
point where it almost becomes ridiculous for you to raise your
own money because you could be plowed down and stamped on by
this outside money.
And so the purpose of this bill is to simply make sure that
we have adequate disclosure to know that money is coming from,
to give that person an adequate fighting chance, to say look
who is funding the attacks against me. Is that right?
Ms. Gerken. Yes. In fact, a lot of my research has been on
what I call the ``rise of the shadow parties,'' these
organizations outside the formal party structure, which are
having an increasingly large influence over the elections
process. And the trouble with shadow parties is that unlike
your party and unlike the Republican Party, they are not open
to average and everyday people; that is, the price of admission
to a 501(c)(4) is money, money, money, and more money. That
means that the everyday people who inhabit our parties, the
party faithful and the voters, are losing the chance to
influence the shape of the political process precisely because
all the power is moving in the direction of the shadow parties.
This is a step toward halting that flow. It will not fix it
entirely, but at least it will do something to help us hold
these groups accountable.
Senator Klobuchar. One of the things that the Supreme Court
pointed to in its recent McCutcheon decision was that now more
things are online for people to take a look at. They may be
true, but as you know, not everything is written online. It is
very hard for people sometimes to find things.
Do you think that improving the technology that we use for
disclosing money--this is outside of--it is part of the
DISCLOSE Act but not in the bill--in elections to help make it
easier for groups to report on this and for the public to know
what is really happening?
Ms. Gerken. I think that anything that can be done to make
it easier on the public to figure out the source of an ad is
helpful, which is one of the reasons why we made the proposal
that we did, that for ads that are essentially paid for by
groups that do not disclose their donors, that should be on the
ad, because citizens have a right to know who is behind the
money. And I will say that for the average citizen, even the
system we have now requires an inordinate amount of work for
them to figure out who is behind some of these ads and who is
not.
So, yes, anything that can be done, both in terms of
putting labels on the ads and increasing the transparency of
the way money flows through the system, is a good thing, in my
view.
Senator Klobuchar. I totally know this because even how I
have not had a lot of independent ads run against me, they have
had issue groups do it sometimes. I have tried to figure out
who is financing when my name is in it, and I cannot figure it
out.
Ms. Gerken. No, I actually once made a joke in my election
law class that you could have a group called ``Americans for
America,'' and then one of my students proposed--I do not know
if this is true--that, in fact, that group exists. So you never
know who is behind it.
Senator Klobuchar. There you go. So one of the things that
has intrigued me with this is that this just has not been a
partisan issue in the past. People have come together on trying
to find a way to regulate campaign contributions, understanding
that it becomes actually corrupt when there is so much outside
money and people cannot tell where it is coming from. And I
truly believe the integrity of our electoral system is at
stake, and from what I am seeing, there is a bipartisan support
in the public for doing something about all this outside money,
but we are not seeing it here.
Why do you think that is? How do you think we can change
that?
Ms. Gerken. Well, I do think that there is actually
generally bipartisan support. The American people
overwhelmingly favor transparency. I also think that when you
move a little bit outside of Washington, you find that people
on both sides of the aisle are in support of transparency.
Certainly when McCain-Feingold was debated, virtually
everyone on both sides of the aisle was in favor of
transparency, and I had the pleasure of working on a commission
with Senator Trent Lott, with Representative Henry Bonilla,
with Senator Olympia Snowe, and we unanimously decided to
endorse transparency rules for independent funding. And in many
ways, I think that one way to understand what that commission's
purpose was to think about the relationship between elections
and governance, because governance is breaking down in
Washington. And the group as a whole was deeply concerned with
that. Transparency rules are part of what makes governance
work. It helps the American people hold their representatives
accountable. And it helps us all figure out where the money is
flowing and how power is working in Washington.
Senator Klobuchar. Mr. Smith, you know, one of the
witnesses that we had at the Judiciary Committee was--actually
I pushed him a little, and he said when--remember, this is not
about the DISCLOSE Act. This is about the constitutional
amendment that Senator Cruz was referring to. And he basically
said he thought we should not have any limits at all on--any
kind of limits on contributions. Do you share that view?
Mr. Smith. You are asking me?
Senator Klobuchar. Yes.
Mr. Smith. I am sorry. Well, let us put it this way: I
think we should have good, reasonable limits on contributions.
The current limits on contributions are substantially less than
what they would be had they even been raised for inflation
since they were first enacted in 1974, and it is worth noting
that, prior to 1974, we never had any limits on direct
contributions by individuals to campaigns. Individuals up to
1974 were free to contribute $20 million directly to a campaign
if they wished to do so.
Several States still allow that, and there is nothing that
indicates to me that it has had detrimental effect. In fact,
those States consistently rank near the top of the best
governed and least corrupt States in America.
So I guess the better question to me would be, you know,
what really--how strong is the justification for limits,
especially limits at the low levels that we have them now? When
people ask me, you know, would I do away with all limits, I
guess I always say, you know, might, but, look, I understand
why people want limits. I think what we need are more
reasonable limits. That would be a good starting place.
Senator Klobuchar. But do you think it would be--it is
constitutional to have those limits in place?
Mr. Smith. Well, the Supreme Court has repeatedly said that
it is constitutional to have limits on contributions.
Senator Klobuchar. Right.
Mr. Smith. There are several Justices, both now and former
Justices, who have disputed that, but it has never been a
majority position on the Court.
Senator Klobuchar. And then do you think there is a
constitutional issue then with actually disclosing the names of
those people that there are limits----
Mr. Smith. They are disclosed. I mean, if you give money to
a campaign, your name is disclosed.
Senator Klobuchar. But you have an issue with the DISCLOSE
Act then?
Mr. Smith. Yes, I do, because I think we need to recognize,
first, the Roberts Court has not said that rules like ``this''
are constitutional. It has said--it has been generous toward
disclosure. It has never ruled on rules like this. In Citizens
United, in McCutcheon, it is ruling against a background of
existing disclosure rules. And as I mentioned in my prepared
testimony, we have more disclosure now than at any time in
American history. And the Court has looked at that and said
this is the solution, this is adequate. It should not be read
to suggest that the Court is saying go ahead and do whatever
things more you want to do.
Senator Klobuchar. But what is so wrong with disclosing the
people that give these kinds of contributions?
Mr. Smith. Well, the question, again----
Senator Klobuchar. Why would that make it different than
the other rules?
Mr. Smith. The question is who or what is going to be
disclosed. For example, this act does not require disclosure by
the American Constitution Society of its donors. Maybe it
should. The American Constitution Society would escape it
because it is a (c)(3). It does not engage in a certain type of
political activity. But anybody who says that it is not out
there trying to influence politics is not serious. I mean, that
is what a lot of groups do.
So, again, the question is not that people are opposed to
disclosure as if this is some clear, obvious thing. The
question is: What should be disclosed--right?--when and how?
And to what extend do we want to tie our system up trying to
get, you know, the last little bit of disclosure out of the
system?
501(c)(4)s have long done very, very hard-hitting issue
ads. The NAACP ran ads in 2000 that re-enacted the lynching of
a man named James Byrd, and the narrator specifically blamed it
on then-Governor George W. Bush. It ran these ads in October
just before the election. They did not disclose their donors.
Nobody got upset about it at the time. This is not something
new in that respect. It is not new since Citizens United. It
has only been viewed as a crisis, so to speak, since Citizens
United, and I think that really is a reaction to Citizens
United rather than a serious, you know, re-evaluation of the
need for added discussion in this area.
So, you know, again my organization and I have supported
disclosure. I have supported it in my academic writings. But it
is a question of what should be disclosed and how much. The
Supreme Court has not endorsed all disclosure. In many cases,
in the 1970s, 1980s, 1990s, and 2000s, it has protected the
right of citizens to engage in political activity anonymously,
and nothing in Citizens United or McCutcheon overrules any of
those decisions.
Senator Klobuchar. Do you have concerns that once--you
know, we do not know where this money is coming from because it
is not disclosed, that you could have foreign money come in
when we do not know what the money is and----
Mr. Smith. You can have foreign money come in anyway.
People just would not have to--they would not report it. They
would----
Senator Klobuchar. Yeah, but if they have to report it----
Mr. Smith. If they want to break the law, they will break
the law.
Senator Klobuchar [continuing]. You can add it up and see
what it adds to. It would take another step if you made up
where the money was from. This time you would at least be able
to know where it was from.
Mr. Smith. Right. Well, as I pointed out, it is about 4
percent of the money that is not itemized by donors that is in
the system, and so I think we need to keep that in perspective.
And I think the end result is I think that one could consider
changes to disclosure rules, and there may be some things that
we would want to do. But I think that this bill in particular
has a lot of problems, again, as I pointed out, it brings up
what we call ``junk disclosure,'' double counting of funds,
relating people to money that they did not give for purposes of
advertising, misdirecting the public about who is giving, in
fact, or who is not giving. And so I think that we need to be
conscious of the fact that this is simply not a good bill on
its own technical merits. But I think also as we design bills,
we need to be conscious of the fact--and I think the data
supports this pretty clearly--that excessive disclosure
discourages honest, good political participation, and we need
to be careful about that and sensitive to that reality. And it
can be misused in the same way that anonymity can be misused
when people intentionally say our goal is going to be to smear
and attack people based on political activity they might be
vaguely related to through some financial transaction.
Senator Klobuchar. Okay. Ms. Gerken, do you want to
respond?
Ms. Gerken. Well, I want to agree with Professor Smith that
the Supreme Court said what it said about disclosure when it
robustly and emphatically affirmed the validity of disclosure
rules. It did so against a background in which super PACs are
regulated, political parties are regulated in the same way that
501(c)(4) organizations would be regulated going forward. They
are the outlier. All that this bill does is pull 501(c)(4)s
into the ambit of the kind of disclosure rules that we have had
for a very long time without anyone worrying about the First
Amendment or suppressing speech.
Senator Klobuchar. I just think it so much weighs on the
side of getting this disclosed, and this is just from my own--
you know, I am not the constitutional expert that you two are.
It is just based on my practical experience. I remember when I
had a $100 contribution limit in local office. That is what we
had in non-election years. So, like, six of my election--six of
my years out of eight I had a $100 limit on contributions
during the 8 years that I was county attorney. I would still
get numerous contributions for $99 because then people knew
that their name would not be out there. And, okay, maybe that
is okay when you are dealing with $99, $100. But when you are
dealing with the millions of dollars we are looking at here, I
just do not think it is okay. It is a difference because of the
impact that extra money can have. And the outsize impact when
you look at what individuals can give in an individual race, so
you can get a max of, what, $5,000, a lot of the contributions
I get are like $1,000, and then someone coming in with $25
million against you and then you cannot tell who those people
are.
Ms. Gerken. And, Senator, Professor Tokaji is not here to
talk about his report, but it really provides compelling
evidence that the numbers here are important, but what is more
important is the way it is changing the political landscape.
There are $310 million--there is complete agreement that at
least that amount of money was not disclosed in 2012. But the
way that it is changing how people run their campaigns and work
with these shadow parties is quite astonishing. The parties are
becoming more sophisticated. This is looking a lot more like
what anyone in the world would call ``coordination'' except for
a few lawyers. And so it is becoming an increasingly worrisome
problem, and it is hard to imagine 2016 is going to be any
better.
Senator Klobuchar. Right. And the last thing I would say
politically, as the Chairman, as someone who likes to get
things done and try to find some common ground, I just think
this money in these extreme forms from the outside is not going
to foster that at all, because people are not--they are going
to know something is going to hit them that will just outweigh
all that money that normal people give you at $100 or $500 or
$50 or $20, it will just be outweighed by some interest group
who does not agree with you on one issue or that you have not
toed the party line on one thing, either right or left, and
that money is just going to come in and blow you out. And that
is why I think that in the end not only is this bad for just
the traditional idea that we should know who is giving money, I
just think it is bad for our democracy in terms of getting
things done.
So thank you very much.
Senator King. Thank you, Senator.
Just a couple of follow-up questions. It occurs to me, Mr.
Smith, that the reality--and this is a change that has happened
almost overnight, really just in the last few years. Yes, there
were 501(c)(4)s back along--but I would argue that the
quantitative change equals a qualitative change. And what we
have now is it is like the legends of the Trojan War where the
Greeks and the Trojans fought each other, but the gods were
fighting in the skies. We have parallel universes of campaigns,
and it is getting to the point where the candidates themselves
are the little guys, and the real fight is between the
billionaires who are controlling it. And we have had for 100
years various kinds of controls that have come and gone, but it
has all been because of scandals and the danger of corruption
that people have recognized since Teddy Roosevelt. That has not
gone away. Human nature has not changed. And it just seems to
me that all we are talking about here--and you yourself have
said we have got lots of disclosure, and I would agree that we
do, except in this one area.
You have indicated you think it is only 4 percent, but you
are counting, I think, as I carefully read your testimony, you
are counting as disclosure when a group is listed, Americans
for Greener Grass, as the contributor, that is disclosure. That
is not disclosure. Disclosure is knowing who gave the money to
Americans for Greener Grass.
So I think you are--the 4-percent number, if it were true,
we would not be wasting our time here. But the truth is there
is a ton of money coming in, it is accelerating, and I think
most of us have said, okay, the Court has said what they said,
and those are the rules about campaign finance. But the only
tool they have left us is disclosure. And it seems to me--and
you talk about, well, you know, there could be harassment. I
think Justice Scalia said it very well. This is part of civic
engagement. And if a billionaire can spend millions of dollars
attacking my record or my character, I at least ought to have
the opportunity to know who it is. To me, it is just--again, go
back to the New England town meeting. No one is allowed to
speak in a Maine town meeting with a bag over their head. Who
the speaker is, is part of the information, and that is the
purest form of political speech in our country today.
Give me your thoughts. All we are talking about, I think
Professor Gerken is right, we are talking about applying to the
(c)(4)s and whatever the next iteration is the same rules that
we have had for years where, if somebody contributes to my
campaign, if it is 100 bucks, I have got to list their name,
address, phone number, occupation, but then somebody can spend
$20 million and have no idea who they are or where they are
from.
Mr. Smith. Right. No, I think those are all good points.
Let me try to address those in some order that may not
correspond to their importance or the order in which you raised
them.
But, first, let us note that I think that the McCutcheon
decision, if that is the concern, is actually a good decision
in that, again, McCutcheon allows more money to flow directly
into political campaigns.
Senator King. I understand.
Mr. Smith. Which is fully disclosed.
Senator King. And that may actually diminish the pressure
toward these un----
Mr. Smith. Yes, I do not see it having a major effect, but
I do see it having some effect there. And I think along with
that, as I noted earlier in response to Senator Klobuchar, we
have not raised contribution thresholds to anything close to
what they would be even if adjusted for inflation. And in my
view, they should be substantially higher than that inflation
adjustment, and that would also, I think, relieve some of the
pressure on office holders' fundraising and help to make them,
again, more important in their own races, so to speak. This is
a self-inflicted wound when I hear office holders complaining
about this.
Now, you make a good point. You know, things change, right?
And people change, and how things operate changes. And there is
no doubt that is true. All I can say is that I do not think
there is much evidence at all that these campaign finance--this
web of regulation we have thrown at our political activity,
mainly since 1974--before that the laws were pretty easily
evaded, there were very few rules enforced. I do not think
there is much evidence that it has helped. And if we look at
States that are deregulated versus States that are highly
regulated, there is little evidence that the latter group
performs better in almost any measurement you choose--
educational attainment, personal income, unemployment, almost
any measure of Government policy effectiveness you might want
to come up with.
And in those old days, we always heard the same sort of
stories--``It is just not like it used to be.'' You know, in
the 1920s, the parties were complaining about the expense of
getting radio into everybody's house. And in the 1850s, they
were complaining about, ``Ah, ever since Van Buren, we have to
do all these pamphlets and so on.'' They have always been
raising those kinds of issues.
But there are other ways in which society has changed. For
example, it used to be if you wanted to see disclosure reports,
somebody had to go down and manually look them up. Nowadays you
can sit on the computer, pull up your neighbor's finances.
There are sites that directly link giving to people's--to maps
to people's homes. What is the purpose of that other than
intimidation?
And we should be aware that there are increasingly groups
out there--Media Matters is one; there are several others, one
called ``Accountable Americans,'' and so on--that are very open
about wanting to harass and vilify people.
Now, Justice Scalia is being quoted all the time by people
who never would quote Justice Scalia for anything else, right?
Well, I think Justice Scalia is wrong here. I mean, if this is
true, how did America survive until 1974? It is pretty hard to
figure out. Why do we have the secret ballot, right?
So, again, the question is not, you know, do we oppose
disclosure? No, we do not oppose disclosure. What we want to
keep reminding ourselves is our purpose is to allow the people
to keep tabs on the Government. It is not necessarily let the
Government or let candidates keep tabs on the people. And while
those often are intertwined in a way that cannot be separated,
I think if we start with that premise in mind and we are
sensitive to honest concerns about harassment, then I think we
might have some room to devise more effective disclosure rules
that would get at some of the issues that seem to spur interest
in the DISCLOSE Act.
But what I am not seeing in this act and what I am not
seeing in the public statements I have heard about--and I do
not mean in this room today or anything; I mean generally when
I hear it talked about in the press--is any sensitivity to
those kinds of issues or to why some people might fear
Government or unofficial retaliation and why those concerns are
illegitimate. I think they are legitimate. The people give
anonymously for all kinds of reasons. People give to hospitals
anonymously, right? And I think we need to respect that. To
have the Government compel people to disclose information on
themselves is not something we normally do. It needs to be
carefully done and with a strong rationale behind it.
Senator King. I would not disagree that there are not
issues in that regard, but it seems to me it is a balancing
case, a balancing test of trying to weigh the public interest
in knowing who is trying to influence their vote and also the
corruption issue against the dangers of intimidation and this
is--I tend to agree with Justice Scalia on this, although I do
not agree with him on everything.
Mr. Smith. And so that we can end on a point of agreement,
I agree with your statement there up until the point of
Justices. But I think obviously the devil is in the details.
Senator King. Well, I want to thank both of you for your
testimony, and I want to thank you for the thoughtfulness with
which you have answered the questions and the work that you put
into the testimony that you presented to this Committee. This
is an important issue. It is one that is not going to go away,
and I believe that it is going to continue to bedevil us for
some time unless we can find some resolution.
So, again, I appreciate your joining us, and that is on my
behalf and on behalf of the Committee. This concludes the
second panel of today's hearing. Without objection, the hearing
record will remain open for 5 business days for additional
statements and post-hearing questions submitted in writing for
our second panel of witnesses to answer.
I want to thank Senator Klobuchar and the other Senators
who participated today, and there being no further business
before the Committee this morning, this hearing is adjourned.
[Whereupon, at 12:11 p.m., the Committee was adjourned.]
APPENDIX MATERIAL SUBMITTED
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[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
HEARING--NOMINATIONS OF MATTHEW.
MASTERSON AND CHRISTY McCORMICK.
TO BE MEMBERS OF THE ELECTION ASSISTANCE COMMISSION
----------
WEDNESDAY, SEPTEMBER 10, 2014
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 9:58 a.m., in
Room SR-301, Russell Senate Office Building, Hon. Angus S.
King, presiding.
Present: Senator King.
Staff Present: Kelly Fado, Staff Director; Stacy Ettinger,
Chief Counsel; Ben Hovland, Senior Counsel; Sharon Larimer,
Professional Staff; Julia Richardson, Senior Counsel; Abbie
Sorrendino, Legislative Assistant; Phillip Rumsey, Legislative
Correspondent; Jeffrey Johnson, Clerk; Annalee Ashley, Staff
Assistant; Mary Suit Jones, Republican Staff Director; Shaun
Parkin, Republican Staff Director; and Paul Vinovich,
Republican Chief Counsel.
OPENING STATEMENT OF SENATOR KING
Senator King. This hearing will come to order. Welcome.
On today's agenda is the consideration of the nomination of
Mr. Matt Masterson and Ms. Christy McCormick to be members of
the Election Assistance Commission. Both of our nominees have
strong backgrounds in election law and procedure. Mr.
Masterson, recommended by Speaker John Boehner, currently
serves as Deputy Chief of Staff and Chief Information Officer
at the Ohio Secretary of State's Office. Ms. McCormick,
recommended by Senate Minority Leader Mitch McConnell,
currently serves as a Department of Justice trial attorney with
the Voting Section of the Civil Rights Division.
Mr. Masterson and Ms. McCormick, I would like to welcome
both of you here today, and I congratulate you on your
nomination to be members of the Election Assistance Commission.
Mr. Masterson, I understand your wife, Joanna, and brother,
Justin, are here with you, and we would like to welcome them.
And, Ms. McCormick, your daughter, Elizabeth, and sister,
Cecily, are here. The committee would like to welcome your
family members and are very happy that they could join you here
today. We are also pleased to have members of the Election
Assistance Commission staff with us today as well.
Following the Presidential Commission on Election
Administration's release of its final report in January of this
year, the Rules Committee has held five hearings on election
administration. These hearings focused on the bipartisan best
practice recommendations of the Presidential Commission.
Election officials and experts from around the country have
testified before us on many of the most successful efforts to
improve how our elections are run. I am particularly
enthusiastic about this project because I believe, particularly
as a former governor, that too often, we have good solutions
worked out in individual States and nobody knows about them.
So, best practices--sharing best practices, I think, is
something that we should always strive to do more of.
A frequent topic of concern at the hearings that we have
had was the EAC, and it has been operating, as you know,
without a quorum of Commissioners since late 2010 and has not
had Commissioners sitting since December of 2011. This
Commission was established by the Help America Vote Act in
2002, HAVA. The EAC was created to be an independent,
bipartisan commission charged with a number of important
responsibilities, including developing guidance for State and
local election officials to meet HAVA requirements, adopting
voluntary voting system guidelines, and serving as a national
clearinghouse of information on election administration.
Without a quorum of Commissioners, however, the EAC has
been severely limited in its ability to fully function as
Congress intended. Additionally, the advisory boards, composed
of State and local election officials and members of the
broader elections community, have been unable to convene and do
their work.
Despite these severe limitations, during the election
administration hearing series, this committee repeatedly heard
about the value and importance of the EAC's work. Several
election experts discussed how important the Election
Administration and Voting Survey is to understanding how
elections are administered across the country. Beyond the
survey, it was evident that many of the State innovations that
were held out as best practice recommendations to be replicated
were made possible because of EAC grant programs. We also heard
about the need for a fully functioning EAC to help address the
growing challenges of aging voting systems and the need for
adoption of new voting system guidelines.
The Presidential Commission's report and this committee's
hearings made it clear that the EAC's role as a clearinghouse
of election information and best practices is needed and should
be expanded. In short, the EAC has work that needs to be done,
and today, we have an opportunity to take the next step in
helping this agency function as it was intended under the Help
America Vote Act.
I am pleased that we have two very well qualified
candidates who have been nominated and are testifying before
the committee today. Your experience and background in
elections will undoubtedly help the EAC to move forward.
I hope we can move your nominations swiftly and create a
fully functioning EAC that our elections and voters deserve. It
is a very tight schedule here, as you know, during the next
several weeks, but we are hopeful that we will be able to move
your nominations before Congress recesses later in September.
Senator Roberts, our Ranking Member, could not be here this
morning, but if he has opening remarks, we will certainly see
that they are put into the record, without objection.
So, with that as background, we will hear from our nominees
in alphabetical order.
I have to stop and tell an amusing story about elections.
In Maine, as in most States, the ballot order is determined
alphabetically. Mr. Bailey is always on the ballot ahead of Mr.
Mitchell. One year, there was a bill in the Maine legislature--
this was many years ago--to change that rule to make it random,
to make the order selected at random in terms of how you would
appear on the ballot.
In the Maine House of Representatives, we have two large
lighted tally boards that tally the votes of the members of the
House, yes or no, on each issue that comes before us. And, lo
and behold, when this issue came before the House of
Representatives to go from the alphabetical system to the
random system, all the names in alphabetical order of the
members of the House on the left side of the body voted no and
all the people on the right side, who were lower down in the
alphabet, voted yes. To my knowledge, it is the only time that
has ever happened in the history of the Maine legislature.
[Laughter.]
Senator King. So, thank you, Mr. Masterson, and if you will
proceed, I look forward to your testimony.
TESTIMONY OF MATTHEW V. MASTERSON, NOMINATED TO BE A MEMBER OF
THE ELECTION ASSISTANCE COMMISSION
Mr. Masterson. Well, thank you, Chairman King, and good
morning. Thank you for holding this hearing on my nomination to
serve on the United States Election Assistance Commission.
I also want to thank Speaker Boehner for submitting my name
to President Obama for consideration and to thank the President
for nominating me. It is truly an honor.
I am pleased to have the opportunity to testify on my
qualifications and interest in becoming an EAC Commissioner. My
career in elections started, appropriately, at the U.S.
Election Assistance Commission after I graduated from law
school. Since that time, I have worked with both State and
local election officials to serve voters primarily through the
use of technology.
While at the EAC, I worked with election officials, voter
advocates, computer scientists, and manufacturers to help
create the EAC's voting system testing and certification
program. This program was the first of its kind, designed to
allow States to voluntarily utilize federally accredited test
laboratories to have their systems tested and certified to a
robust set of standards.
In 2011, I left the EAC to return home to Ohio and worked
for the Ohio Secretary of State, where I currently serve as
Deputy Chief of Staff and Chief Information Officer. The
opportunity to work in the most important swing State in the
country during a Presidential election cycle was a dream come
true. In my time in Ohio, I have continued leveraging
technology to improve services to election officials and
voters. I have helped implement several programs that have
modernized elections in Ohio and truly made it a national
leader, including an online change of address system, a data
sharing program with the Ohio Bureau of Motor Vehicles, and
more user-friendly voter information tools. All of these have
helped to make the voting process more accessible and more
usable for voters.
For the past three years, I have also served on the
Executive Board of the National Association of State Election
Directors and as a member of the EAC's Technical Guidelines
Development Committee. I also testified in front of the
President's Commission on Election Administration regarding the
aging voting equipment the States are currently using and the
future of voting technology.
State and local election officials across the country are
in an incredibly tough position. Most of their systems are a
decade or more old, which is ancient by information technology
standards, and will need to be replaced in the very near
future. Recognizing that voters will lose confidence in a
voting process that uses 1990s technology instead of modern
technology, election officials are craving innovation in
election systems. I am fully invested in trying to bring about
these kinds of innovations, and if confirmed, I believe I can
continue that work at the EAC.
Finally, I want to thank some of the people who have helped
me along the way. First, I want to thank all of the election
officials across the country whom I have worked with and
learned from. You all do a tremendous service to this country
that too often goes unappreciated. I especially want to thank
those election officials who have patiently mentored me along
the way, teaching me that every detail matters in elections.
Thank you to the team at the Ohio Secretary of State's Office,
especially Secretary Husted, for welcoming me home and giving
me an opportunity to run elections in Ohio.
To my Mom, Pam, my brother, Brian, and my twin brother,
Justin, who is here with me today, thanks for helping me get to
a place where I am doing something I truly love.
To my wife, Joanna, who is also here with me today, and my
two children, Lilah and Nathaniel, thank you for all of your
support.
Finally, I want to thank my father, Vince Masterson, who
passed away on Sunday, and who I know was very proud of this
opportunity.
Chairman King, I thank you for consideration of my
nomination and will be happy to answer any questions you may
have. Thank you.
[The prepared statement of Mr. Masterson was submitted for
the record:]
Senator King. Thank you.
We will hear from Ms. McCormick first, and then we will
have questions for both of you. Ms. McCormick.
TESTIMONY OF CHRISTY A. McCORMICK, NOMINATED TO BE A MEMBER OF
THE ELECTION ASSISTANCE COMMISSION
Ms. McCormick. Good morning, Chairman King. I am pleased to
be here to discuss my nomination to serve on the United States
Election Assistance Commission.
I thank Senate Minority Leader Mitch McConnell for
submitting my name to the President and to President Obama for
nominating me. I am deeply honored that you are considering me
for a position of trust in our government.
I appreciate the opportunity to testify on my background
and qualifications to become an EAC Commissioner. My interest
in elections started as a young adult, when my parents involved
our family in working on campaigns and hosting fundraisers for
candidates at our family home in Massachusetts. I was excited
to be able to cast my first vote at the age of 18 in New York,
and found myself running for office in Michigan by the age of
20. I volunteered to be an Assistant Voter Registrar in
Connecticut in the 1980s, and again in Virginia when I moved
there in the 1990s. Having been involved in elections and
voting in several States early on in my life gives me a unique
perspective.
In 2006, I joined the U.S. Department of Justice Voting
Section, where I continue to serve as a trial attorney. My work
at the Justice Department involves investigating and
prosecuting violations of Federal voting statutes, including
the Voting Rights Act, the National Voter Registration Act, the
Uniformed and Overseas Citizens Absentee Voting Act, also known
as UOCAVA, and the MOVE Act, most of which have some nexus with
the work of the EAC.
I have been privileged throughout my career at the Justice
Department and at the Office of the Virginia Attorney General
to contribute to some very important cases and to have had an
impact on First Amendment, civil rights, and voting
jurisprudence.
In addition to litigation, I also conduct election
monitoring for the Justice Department and have observed
numerous elections and polling places all across America.
In 2009, the Office of the Deputy Attorney General sent me
on a year-long detail to Iraq, where I served as an attorney
advisor and Acting Deputy Rule of Law Coordinator. The Office
of the Rule of Law Coordinator was embedded in Embassy Baghdad
and was responsible for collaborating with the Department of
State, the U.S. military, and other Federal agencies, along
with our international partners, on rule of law initiatives. We
provided advice and support to Iraqi ministries and legal
institutions, including the Higher Judicial Council, the
General Secretariat for the Council of Ministers, the
Ministries of Justice, Interior, Human Rights, and Women's
Affairs, among others. I also served as a liaison to parallel
ministries in the Kurdish region.
One of my main and most exciting assignments was to serve
as the Justice Department's expert on elections in Iraq. Along
with our State Department colleagues, I worked with the Iraqis
on their 2010 national elections. This included providing
assistance and advice to the independent High Electoral
Commission during the run-up to the elections, participating in
a team observing the elections in the Wasit Province, and
witnessing the extensive 12-day election recount. I was deeply
impressed to see a large number of women voting on election day
and very encouraged by watching families bring their children
into the polls to teach them about democracy and to dip their
fingers in the electoral ink. It is my deepest hope that the
idea of democracy and fair elections will still be possible in
Iraq in the future.
As for elections here in the United States, if confirmed, I
will do my best at the EAC to assist our 8,000 jurisdictions in
fairly and smoothly administering their elections. We have much
work to do to assure that all eligible voters are able to cast
their votes in elections that are secure and in which the
electorate can place its full confidence.
While the EAC is not tasked with rulemaking or running
elections, it is in a position to provide information, share
best practices, collect data for election analysis, and offer
programs that support modern elections such that the public has
full access to the ballot box and trust in our electoral
outcomes. I believe this is essential to the health of our
Republic and I would like to continue this important work at
the EAC.
As with all of us, I did not come to this place without the
help of many others. I want to thank the many people I have
worked with and for, including Justice Elizabeth McClanahan,
Professor Michael I. Krauss, Commissioner Judith Williams
Jagdmann, former Solicitor of Virginia William Hurd, many of my
current and former colleagues in the United States Department
of Justice and in the Virginia Office of the Attorney General
who have provided me with amazing opportunities and helped me
hone my legal abilities.
Thank you, also, to the election officials I have met and
worked with across the country over the past eight years, who
work long hours, deal with often complex logistics, and do so
many things that go unnoticed in running our elections.
Thank you to my dear friends, some of whom are here today,
with whom I am able to debate and discuss the issues of our day
and who provide me with love, support me with prayer, and
encourage me with many laughs.
Thank you to my family, especially my parents, Keith and
Carol Cutbill, who introduced me to campaigns and elections; my
sisters, Catherine, Laura and Lynda; my brother, Chaz, and his
wife, Corie; my nephew, Parker, and niece, Bentley. Special
thanks to my sister, Cecily Cutbill, who is here with me today,
and to her husband, Christopher Thorne, my niece, Caroline, and
nephew, William, who have sacrificially housed me and fed me.
Finally, my deepest love and appreciation go to my beautiful
daughter, Elizabeth Mead, who is here today from California.
Thank you for your love and for inspiring me daily.
Chairman King, if confirmed, I am prepared to do my best to
serve our country as an EAC Commissioner, and in that role, to
commit to appear and testify before Congress upon its request,
and I am happy to answer any questions you may have.
[The prepared statement of Ms. McCormick was submitted for
the record:]
Senator King. I have two preliminary observations. The
first is, I want to be sure the record shows my appreciation to
Speaker Boehner and Leader McConnell for finding you two
extraordinarily well qualified, thoughtful people, and I want
to thank them publicly for putting your names forward to the
President and thank the President for making those nominations.
The second observation is that Senators are often in a
position of asking questions to people who know more about the
subject matter than they do, and that is certainly true today,
but I am going to forge ahead anyway and ask a few questions of
each of you, not in any spirit of trying to trip you up or
embarrass you in any way, but in a genuine pursuit of
information and your thinking about this job that you are
proposed to embark upon.
Mr. Masterson, you mentioned about technology and how many
jurisdictions are upgrading their technology. It seems to me
that one of the challenges is to assure people that their vote
is going to be counted and that there is no mischief to be had
when there is not a piece of paper. In my hometown, we vote.
There is still a piece of paper and we fill in an arrow--I am
sure you are familiar with that style--and then it goes into a
machine. But, there is a certain confidence that there is
something tangible if all else fails that can be reviewed.
How do we build a technological system that the public can
have confidence in when we hear about Home Depot or Target
being hacked or something like that? Our election process and
the integrity is so important to public confidence in our
democracy. How do we weigh the desire for technology and
efficiency against the risks of technological failure that
would impede or impair the confidence of the public in the
voting process?
Mr. Masterson. Well, thank you for the question, Mr.
Chairman. It is a great question, and the answer, not
surprisingly, is one that election officials across the country
constantly battle with. That is, the convenience of the
technology with the assurance that every vote is counted as
cast. And, that is the role that I hope to play in going to the
Election Assistance Commission, is disseminating best practices
that these election officials across the country have worked on
and developed to deal with that very struggle of the balance
between security and accessibility or usability of the systems
in order to provide the best service to voters. Election
officials across the country with these systems have found new
and innovative ways to provide that assurance that you just
talked about, whether it is in the form of a paper ballot or
post-election audits, while still providing the level of
convenience that voters expect.
Senator King. Are we moving toward paperless voting
systems? Is that the trajectory of the technology?
Mr. Masterson. I think that is a really fair question. I
think some jurisdictions already have paperless technology and
other jurisdictions insist on having the paper ballot. And, so,
not surprisingly, like with all things in elections, it is what
the voters expect in order to have confidence in the process.
Voters, for instance, in the State of Georgia, embrace
their voting system and their touch-screen system for what it
is, and that is what the election officials in the State of
Georgia have chosen to use and the voters have undertaken and
accept. In Maine, for instance, like you said, the expectation
is to have that paper ballot. And, so, that choice and the
availability of best practices on how to manage either a paper
system or another type of voting system is important so that it
can be done well and with integrity.
Senator King. Well, it seems to me that the integrity, the
last word you used, is so important, because all it would take
would be one disaster that would undermine confidence
nationally. In this day and age, with communications being what
they are, if there is one district in one State where the vote
totals were 10,250 and there were only 8,000 people in the
district, it would be a catastrophe for our democracy, I think.
So, I hope, in your work, you will keep in mind these dual
goals of efficiency versus verifiability and confidence. There
is an intangible that is so important here, I think. So, I hope
that is something that you will bear in mind in your work on
the Commission.
Mr. Masterson. Absolutely.
Senator King. Ms. McCormick, I am fascinated by your
experience in Iraq. I think that probably the two most
important elections in the last several years have been Iraq
and Ohio, I mean----
[Laughter.]
Senator King. Share with me your observations from that
experience. Do we have anything to learn from the way that
those elections were conducted?
Ms. McCormick. Well, it was, obviously--thank you for the
question. It was an interesting experience, a dangerous
assignment. There are lessons that we can learn from that
experience. One of the things that the Iraqis did exceptionally
well was transparency. Everybody knew who was able to vote in a
particular polling place because they actually listed the names
of all voters outside the polling place. And, they had a very
good system where they had a center where people could go if
their names were not found so that they could be sent to the
correct location so that their ballot could be cast and
counted. The Iraqis did, I think, a better job, in my view,
than some of our own jurisdictions that I have witnessed. So, I
do believe that we have some work to do in some places. We
should always be striving to improve our elections.
Hopefully, the Iraqis will get back on track. It is very
disconcerting, what is happening there right now.
Unfortunately, much of the work that we had achieved has--now
almost seems for naught, but hopefully not.
We had some very dangerous travels. We had people running
after us with AK-47s and we had--we were not allowed to bring
security into the polling booth with us, so, fortunately for
us, we do not suffer the same security issues that they do in
Iraq.
But, for me, it was a great learning experience, to see the
enthusiasm of the people there who were finally able to vote,
and hopefully, we can encourage our electorate to get out and
vote. I think it is kind of sad that we have elections where
very few people vote, and it would be my wish to have everyone
vote who is eligible in any given election.
Senator King. Thank you.
One of the--I am not sure of the jurisdiction in the
Commission, but one of the issues that we are facing around the
country is not necessarily Election Day itself, but issues like
early voting and mail voting, and I am sure at some point there
is going to be a proposal for online voting. To what extent
does your jurisdiction, does your thinking extend to those
kinds of issues, or is it strictly what happens on Election
Day?
Ms. McCormick. No, I think we are tasked with looking at
everything, information and best practices on everything. The
States have the authority to run our elections, the State and
local jurisdictions, and as Mr. Masterson mentioned, different
States in different jurisdictions do things in different ways.
Our role at the Commission will be to collect that information,
disseminate best practices, share experiences so that, like you
said, some State might have a better way of doing something
than another State, and for us to facilitate that communication
so that we can all improve elections together based on best
practices out in the States and the jurisdictions.
Senator King. Well, you used the right word, and Mr.
Masterson, one of the keys to this is data, I think. Data--it
is so hard to get the data that will drive good policy. One of
my favorite sayings is, the plural of anecdote is a data.
[Laughter.]
Senator King. And, I hope that that is an area that you can
help and pursue, because, for example, questions about early
voting and what are the influences and those kind of things, if
we know what percentage of people are voting early, and the
more of that information we have, the better decisions we can
make on these matters, in my view.
Mr. Masterson. Yeah, I completely agree. Fortunately,
through the EAC's Election Day Survey and other efforts to
collect data, election officials more and more--and I see it in
Ohio all the time and we do it in the Secretary of State's
Office--are leveraging data to not only look at those numbers,
like you suggest, but create efficiencies and cost savings. The
reality is, that data really helps inform election officials'
decisions in an area where resources are extremely tight and
service and expectations are extremely high. And, that data is
what helps inform them. And, I know there will be election
officials across the country thrilled that you are bringing up
the need for good data and constant improvement to that data.
Senator King. Well, one example would be voting patterns by
hour so that you knew how to staff and you could staff to the
demand. And, if you have a historic record of when people are
more likely to show up with some real substantial basis, you
can--that, in itself, would improve the efficiency because you
would be able to move more people through during those hours
when the demand is the highest.
Mr. Masterson. Absolutely. We have election officials in
Ohio who literally sit with a stopwatch to time how fast it
takes their clerks to check in registrations to figure out just
that, how much time and staff do we need to do certain tasks.
So, that data speaks directly to informing the process and
creating both better services for voters and greater
efficiency.
Senator King. Well, let me ask a sort of concluding
question of both of you, which is pretty broad. Ms. McCormick,
what are your priorities as you go, as you have thought about
this job, as you go in? What is it you want to focus on? Where
do you think the gaps are? I mean, you are coming to this with
huge experience and you must have some view of what--and, you
are going to be in charge, I mean, with the other two
Commissioners, you are going to be setting the agenda. Where do
you see the need for action and work by the Commission?
Ms. McCormick. Thank you, Senator. I think the first thing
that we need to do, because the Commission has been without a
quorum and Commissioners for so many years, I think the very
first thing we need to do is to review the roles and the
responsibilities of the agency and its employees and to figure
out exactly where the agency stands now, what our statutory
duties are, and where we should be going forward. I think that
will take some time. There is a lot to be done, but I am
excited about it and I think that we can serve our clients once
we get up and running again.
It is hard for me to say right now exactly what the first
priority would be, other than to figure out what exactly has
been going on at the Commission for the last several years and
how it matches up with what we are supposed to be doing under
the statute.
Senator King. Good. Thank you.
Mr. Masterson.
Mr. Masterson. Yeah. Thank you, Mr. Chairman. And, the
first thing I would look to do is begin the process of updating
the voting system standards, which is one of the core tenets in
HAVA for the role of the EAC. As I mentioned in my opening
remarks, election officials are at the end of life for their
voting systems and the voting system standards have not been
substantially updated in quite some time. And, so, to begin
that process and begin the work to update the voting system
standards so that election officials can begin to see the
innovation that they desire would be the first point I would
focus on.
Senator King. Any additional comments that either of you
would like to make for the record before we close the hearing?
Ms. McCormick. No, Senator. I have no more comments. Thank
you.
Senator King. Thank you.
Mr. Masterson. No, Mr. Chairman. Thank you for your time.
Senator King. Well, thank you both, and I sincerely
appreciate your willingness to take on this task, particularly
given your extraordinary credentials. It is an important one.
It is at the heart of our democracy and our system, and public
confidence is so important. There is a little bit of a dilemma.
Part of public confidence is being sure every vote counts. Part
of public confidence is not having to stand in line for three
hours and feel that there is some--that voting is a huge chore.
So, we have to find the right balance, and I certainly
appreciate your willingness to step forward and take on this
responsibility.
We will hold the record of this hearing open for, I believe
it is 24 hours, the close of business tomorrow, Thursday,
September 11, for additional statements and post-hearing
questions submitted in writing for the nominees to answer.
There is no further business to come before the committee.
I declare this meeting adjourned.
[Whereupon, at 10:29 a.m., the committee was adjourned.]
APPENDIX MATERIAL SUBMITTED
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BUSINESS MEETING--TO CONSIDER THE.
NOMINATIONS OF MATTHEW MASTERSON.
AND CHRISTY McCORMICK TO BE MEMBERS OF THE ELECTION ASSISTANCE
COMMISSION
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WEDNESDAY, DECEMBER 3, 2014
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 5:40 p.m., in
Room 216, United States Capitol, Hon. Charles E. Schumer,
presiding.
Present: Senators Schumer, Durbin, Pryor, Udall, Warner,
Leahy, King, Walsh, Roberts, Shelby, Blunt, Cruz.
Staff Present: Kelly Fado, Staff Director; Stacy Ettinger,
Chief Counsel; Jay McCarthy, Director of Operations Oversight;
Veronica Gillespie, Counsel; Ben Hovland, Counsel; Abbie
Sorrendino, Legislative Assistant; Phillip Rumsey, Legislative
Assistant; Jeff Johnson, Clerk; Benjamin Grazda, Staff
Assistant; Mary Suit Jones, Republican Staff Director; Paul
Vinovich, Republican Chief Counsel; Rachel Creviston,
Republican Senior Professional Staff; Trish Kent, Republican
Senior Professional Staff
OPENING STATEMENT OF CHAIRMAN SCHUMER
Chairman Schumer. Thank you for coming. We have a quorum of
10 Members so we can proceed. Under consideration are the
nominations of Matthew Masterson and Christy McCormick to be
Commissioners of the EAC. Is there any further debate on the
nominees? No. Then we will now consider the nominations
individually. As usual, we will make these voice votes.
However, if the Ranking member requests a recorded vote, I will
ask the clerk to call the roll. The question is on reporting
the nominations favorably to the Senate.
Chairman Schumer. First, Mr. Matthew Masterson. Is there a
second?
Senator Roberts. Second.
Chairman Schumer. All those in favor, say aye.
[Chorus of ayes.]
Chairman Schumer. All those opposed, say no.
Chairman Schumer. The ayes have it. The nomination of
Matthew Masterson is ordered favorably reported to the Senate
with recommendation the nomination be confirmed.
Next up, is Ms. Christy McCormick. Is there a second?
Senator Udall. Second.
Chairman Schumer. All those in favor, say aye.
[Chorus of ayes.]
Chairman Schumer. All those opposed, say no.
Chairman Schumer. The ayes have it. The nomination of Ms.
Christy McCormick is ordered favorably reported to the Senate
with recommendation the nominee be confirmed.
Chairman Schumer. I'd like to thank everybody for coming
and I am going to ask our Ranking Member, who will no longer be
the Ranking Member of anything, if he'd like to make some
concluding remarks.
Senator Roberts. No, sir.
Chairman Schumer. Then the meeting is adjourned.
[Whereupon, at 6:30 p .m., the Committee was adjourned.]
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