It happens often that calamitous election outcomes are attributed to democratic dysfunction, and reform proposals follow from there. Those Republicans who are not deeply cynical about voter ID--and there are a fair number of those--sincerely and mistakenly believe that they lose elections because of illegal voting. Years ago, they convinced themselves that structural bias would keep Democrats in power in the Congress until the nation adopted mandatory term limits. Democrats in 1971 famously believed Richard Nixon reinvented himself politically through dark manipulations of television advertising, and to weaken his reelection prospects, their ranks in the Congress enacted a short-lived law that limited candidate media expenditures.

Of course, not all reform proposals born of frustration are misconceived or doomed to fail. But there are risks, some of which are apparent in a new reform initiative from Professor Lawrence Lessig’s: litigation to establish that states may not allocate Electoral Votes on a winner-take-all basis (WTA). His argument is not entirely about a change in the rules to achieve preferred outcomes or prevent bad ones. He does contend that, by driving active campaigning to a handful of states, WTA limits meaningful participation in the election to a handful of states whose voters see the most paid advertising and enjoy--if that is right word--the most visits from candidates and their surrogates.

Professor Lessig’s next argument, however, is more political. He sees WTA as putting more power in the hands of older white voters in industrial heartland states. It is fairly clear, then, that this proposed litigation is a response to the election of 2016, grounded in the belief that a change in the allocation would work a shift in the balance of national political power. And we have seen a reaction like this before. In 2012, the Democratic nominee won Pennsylvania, and those who were bitter about WTA were Republicans state legislators who threatened to shift a Congressional-district based allocation. Indeed the same move among Republicans is now underway in the State of Virginia and Minnesota.

So this is one risk: guessing wrong, as the Republicans did in 2012. Had they succeeded then, the congressional district-based allocation of electoral votes would have benefited Hillary Clinton in 2016. Politics is not static, and the judgment about the political effects of specific allocations is hazardous.

Another risk is misreading, or reading narrowly, the requirements of democratic participation in the concrete setting of the politics of the era.

In 2016, Department of Homeland Security Secretary Jeh Johnson found that state election officials were suspicious of federal offers of assistance in defending their voting systems from cyber attack. He tried to persuade them to accept DHS designation of those systems as “critical infrastructure,” which would have given states access on a priority basis to a range of protections. The response he received ranged from “neutral to negative.” DHS concluded that, in the middle of an election, it was best not to have a protracted, politicized fight over this step. It focused on providing assistance where it could, and a large number of jurisdictions requested help. In January 2017, even with officials remaining skeptical about the designation, Secretary Johnson proceeded to issue it.

According to Johnson, and as further reflected in reporting by The Washington Post, election officials resisting this engagement with the federal government viewed it as a threat to” states rights.” At least one, Brian Kemp of Georgia, suspected that the Administration might be using the claimed Russian interference as a ploy to advance the political prospects of its favored candidate, Hillary Clinton.  Kemp and others were not convinced that the Obama Administration had properly fixed blame on the Russians. Congressional Republican leadership stayed close to their state allies on these points, also stressing the rights of states and declining to embrace the finding of Russian intrusions.

This is a revealing part of the 2016 story: government at war with itself, in the grip of partisanship, when under cyber attack from a foreign government. The attack was directed at the electoral process, and yet it was still not enough to produce a unified, fully coordinated federal and state response. For all the progress in bipartisan election administrative reform in recent years--and there has been a fair measure of it--Johnson’s account exposes key, and altogether familiar, structural obstacles.

Had the Alexandria shooter had his way and murdered a score or more legislators on a baseball field, the country would have witnessed horrifying carnage--and, as Norm Ornstein has argued, it would have entered into genuine constitutional crisis. The slaughter of the members of one political party would have changed, in minutes, the balance of power in the federal government. A Killer’s Congress would have come into session for an extended time. Special elections don’t happen overnight, or within days or weeks.

It is hard to see how-- by what exceptional displays of political leadership--the government in these conditions could re-establish its legitimacy. It would be exceptionally hard in the “best of times”. In a divisive, polarized politics, it is close to unimaginable.

As Ornstein points out, we cannot say that this miserable state of affairs could not have been anticipated. On 9/11, the Capitol only escaped a devastating attack because Flight 93’s passengers gave their lives to bring down the plane. We also cannot say that no thought was then given to reforms to protect the continuity and democratic integrity of government if its senior ranks were to be violently cut down. Ornstein joined with others to establish a Continuity of Government Commission, which then recommended measures for assuring in the event of catastrophe a functioning, constitutionally legitimate presidency, Congress and the Supreme Court. That was fourteen years ago.

My colleague Brian Svoboda, an expert in congressional ethics, has written an insightful commentary on how we might think about the ends and design of effective congressional ethics regulation. This is a complex and important question to which altogether too little attention has been devoted. Brian's extensive experience with these issues in private practice, coupled with his grasp on the broad policy and constitutional issues, enable him to effectively frame the issues for the discussion--and reforms-that are needed. He also tweets periodically on these issues at https://twitter.com/BrianSvoboda.

Brian's commentary follows:

From an Essay on Impeachment, a Useful Perspective on Congressional Ethics

Greg Weiner cogently argues in The New York Times that we should view the impeachment process institutionally in light of its constitutional design. (Full disclosure: while I used to work with Weiner in the Senate, my views are meant neither to be his nor anyone else’s.) Weiner says that impeachment’s purpose is not retributive, but prophylactic and forward-looking. The process is meant to “protect the public against future acts of recklessness and abuse.” Impeachment serves as a safety valve in the overall constitutional machinery to keep the system functioning properly.

While the processes and standards are markedly different, Weiner’s argument is highly relevant to Congressional ethics enforcement also. Since the House last reformed the ethics process in 2008, creating the Office of Congressional Ethics as an independent investigative authority, there has been a conspicuous lack of reflection over what the purposes of ethics enforcement really are, and how those purposes are best served. Weiner’s institutional approach offers one good perspective for this sort of reflection.

President Trump’s Executive Order to relieve religious organizations of regulatory limits on their political activities came and went with little stir. It was widely seem to be lacking in content. David French, writing in The National Review, was harsher, pronouncing it "worse than useless."

Aimed at the Johnson Amendment, the Order directs the Secretary of the Treasury not to take "any adverse action" against a 501(c) organization speaking on political issues "from a religious perspective." But commentators correctly observed that an Executive Order cannot undo a statute, and that the Order confines its directives to actions by the Secretary "to the extent permitted by law" or "consistent with law." Translated into its simplest terms, the Order requires the Secretary to do what he can if the law allows it, and because the law in question is the Johnson Amendment, then the President has, in effect, demanded that the Secretary ease restrictions “to the extent permitted” by the Johnson Amendment. This is an unusual way of taking on the Amendment.

But if we look beyond the murky conception behind the Order and its somewhat tortuous wording, and consider what it might mean in practice, then it seems more consequential--at least in the next four years.