democracy and his idea for electoral reforms at an event hosted by american university in washington, dc. this is about an hour. >> good evening, everybody. thanks for coming out. i am david darker, the director of the center for congressional and presidential studies at the american university. i am pleased to welcome you to our latest dialogue on democracy that we are proud to cosponsor. these dialogues on democracy is where we bring together experts, thought leaders on democracy, politicians, journalists, scholars, other leaders about the challenges that we face and how we might try to do it better. these dialogues on democracy would not be possible without the generous endowment of james thurber, distinguished university professor. james thurber and his wife, claudia. we are very grateful for their help and support on this. we are also very grateful to the connecticut -- kennedy political union for cosponsoring this. there will be a reception that will follow. tonight, we are fortunate to be joined by bob bauer, professor of practice and distinguished scholar at the new york university school of law, codirector of the new york university law school clinic. he served as white house counsel to president obama and she cochaired two presidential commissions on democratic reforms. he is also the author of multiple books, reports and editorials that offer recommendations for form. -- reform. he will be joined tonight by professor silvia kim of the government department here at american university. since receiving her phd, she has already published a highly regarded book and about 10 scientific journal articles. she is also a highly dedicated teacher. i am going to shut up in the second and had the microphone to professor kim. she will interview bob for about 40 minutes or so, at which point we will open things up for a q&a. you will have an opportunity to ask bob any questions that you have. i asked that you form your question in the form of a question, not a statement or any sort of proclamation. we will wrap things up a little bit after 6:00. professor kim, the floor is yours. silvia: thank you so much. it is an honor to be here moderating this topic. 40 minutes i am sure is not enough time to address the many areas of expertise that bob can address for us. i want to start tonight by talking about election administration. the first question is, it has been some years since you served on the presidential commission and there have been recommendations that have been made with that commission. there are substantial changes in the field of elections. what are the positive and negative changes? bob: thank you for having me. i appreciate that. thank you, david. we have a very mixed picture about election administration. the alarming trend that has developed and needs to be addressed. after 2000, everybody is familiar with the presidential recount in florida and the breakdown of the electoral process in florida in a race that was decided by a little over 500 votes, case that went all the way to the supreme court of the united states. it was generally bipartisan agreement that something needed to be done to upgrade election administration in the united states. that included replacing aging punchcard machinery that created so many problems in florida. all sorts of problems that developed in the state florida and congress came together and enacted the help america vote act intended to provide money to the states to replace the punchcards as a mean of counting the votes. and in addition to bat, setting up an election commission that would be involved in improving elections. that was a bipartisan bill. there were some disagreements as we all know. democrats tend to emphasize access. republicans tend to emphasize security against fraud. the statute passed. when president obama set up the presidential commission on administration in 2013, the focus was still on what was wrong with the way elections were administered and an immediate impetus was very long lines reported in the general election of 2012, his reelection campaign. he said we have to do something about that. it was a bipartisan commission. there were 10. my cochair was bent ginsburg, who had represented the mitt romney campaign. and all the rest of the commissioners we had were experts, including, because we were talk about expediting lines, the vice president of disney in favor of theme parks. no organization manages lines better than disney. we actually got the general services administration to agree that we got to go to disney world to study lines. the recommendations made were all recommendations about management, better polling place management, poll worker recruitment, all the fundamentals of election administration. so that is all good. at the same time, the distinction between access and what i call the suppression versus product conflict continue to simmer. if first took the form of identification statutes that were passed around the country. everybody here knows the thought was to accelerate until we got to the election and everybody is familiar with the extraordinary controversies with the president refused to concede. the goal of the commission was to emphasize that elections are a facet of public administration and they require professionalized management. we are now seeing a turn in the direction toward discredited professional management, discredited nonpartisan administration and trying to put partisan actors in a much more controlling role. we have seen that with state legislatures trying to rein in the professionals that administer elections across the country and assert more political control, more political supervision, because their political actors. it is very troubling that we have taken a sharp turn in the wrong direction after all those years in the 2000s where we were thinking we were working in the right direction. silvia: that must have been quite for you to see the work being dismantled and turning and now direction that is much more polarized. my students were not born one 2000 happened. bob: more h jokes -- age jokes. silvia: that brings me to my next question that you spoke about replacing -- placing partisan actors in the election administration. we have seen a lot of attacks on the professionals. i did read your opinion piece that suggest we build protections for the election officials in place. i saw that what you have been doing so far as a legal network of sorts. is there a more systematic reform that can take place to protect election officials? from systematic attacks, verbal or physical, is there something that can be done more on the mentally? bob: election officials have done -- had a very hard time the last couple of years. they have experienced a whole range of challenges, from personal attacks and threats all the way to enactments by state legislatures that effectively would subject them to the risk of penalties and loss of their jobs if they do not perform the duties the way the politicians want them to. there are steps that can be taken to protect them against personal threats. there is certainly going to be legal challenges to any attempts to over politicize the process that it affected -- that it effectively would be corrupted. there was one statute passed that is subjected administrators to the risk of legal penalties if they disregarded the objective of the law. that is extraordinarily vague. that will be almost certainly the subject of legal challenges. i among many others have been active on this. one thing i have been involved in is forming this legal defense network. i brought mitt romney's counsel back into the game to join in a bipartisan effort to cochair this network that allows election officials who are attacked to obtain pro bono legal services anywhere in the country. and there are other facets of what we are doing, including trying to get business, faith and other communities to speak out on behalf of these election officials and make it clear to the community that it is not in its interest to have this ongoing campaign against professionalized election administration continue. in 2024, we are going to see more of this trouble. on the number of levels, it has to be defended against. silvia: so ensuring that it is important to protect them from the tax. -- attacks. another aspect of the radical changes we have been having recently is how fast voting laws are changing. a typical example that people are familiar with would be a law in georgia that has made it illegal to provide water and food for people voting in lines. as a legal scholar, you will be seeing those that every level. bob: there has been an extraordinary amount of litigation. when i was meeting, there is a way of looking at this fight in the courts and seeing it as a very clear-cut case of suppressive activity that is being challenged on constitutional grounds, but it is complicated and confusing to voters. sometimes the rules are challenged. the lower court sustains the claim and basically blocks with the state has attempted to do. and then there is an appeal. the appellate court reverses. if this happens in the election year itself, it really raises problems for election administrators because they want to know what rules are in effect for that election. it can be very confusing for voters. that is one part of it. the other part is that those who are promoting access, and i've trying to be very fair here -- and i am trying to be very fair here. i am a if you look at democrats being primarily concerned with access, they think that voting should be more broadly accessible, less burdensome, just generally speaking, they lump all of those access issues under the right to vote. it is also true that the republican party also sues and also goes to court. and challenges a -- accommodations for voters like drop boxes. they want to stop third-party organizations from engaging in what they call a ballot harvesting, which is collecting lots of ballots from voters just to assist them in the voting process and then be the intermediaries for delivering those ballots to authorities. that is viewed by many republicans as an invitation to fraud and an insecure arrangement. there are all sorts of flicks like that. in the 2022 cycle, there were lawsuits to invalidate mail-in voting, completely. just get rid of it, which is consistent with the argument that donald trump said about the dangers of mail-in voting. so, litigation is part of it. but, also very important but complicated. it is complicated. also, political pressure within states. this is where civil society plays such an important role. civil society in those states to block legislative enactments that ought not to occur in the first place. there is no question that the civil society organizations, whether we are talking about the business or other communities, had an effect on the outcome of the georgia state legislative efforts, produced a law that was very controversial, but very different from what eventually emerged. i will give you one other example. i think the business community played the pivotal role in putting pressure or in michigan in 2020 to complete the certification of president biden's victory. when you get the whole community involved, it can't be just the lawyers. people need to hear from those who they don't think is in the partisan camps. it is a democracy issue but not just a contention between the two political parties. as to be focused on a commitment in the community as a whole, to the protection of democratic norms and institutions. absolutely. silvia: reminds me, this was in the papers where you were interviewed and wrapping up the commission, there was a line about how a partisanship should not be conflated with a lack of resources. i think the also an important part where, are we putting enough resources to battle? the potential. i think this is a question that i get a lot in my classes. how much of this is a function of the highly decentralized nature of american elections? and we can really say that when we have 3000 or more counties in the u.s., there are really 3000 different collections happening. i am not even counting dates such as wisconsin where things are happening [indiscernible]. i think there are arguments against this highly decentralized nature and people who argue that, we should have really a set of system coherent rules at the federal level that governs elections and some people will argue that no, this is actually what is unique about the u.s. which guards against potential fraud and such arguments. what are your views on this decentralization? do you see any way of reforms or any suggestions? mr. bauer: it is difficult, you are right. we have thousands of jurisdictions and the rules in states, the election administrative practices in states just vary across the entire country. i know there are those with a focus on federalism who will disagree with it. i don't think that this is the way you would design the system from scratch. to think through how we would do this. i don't know if we would do it this way. i should add, there are all sorts of other problems that tie into it. if we are going to have a complex system, you just need to have it better resourced. one thing we discovered is that elections never receive adequate funding. i am totally sympathetic. everybody who performs any governmental function will say often enough that they don't have enough money. in this case, it is true. there is just no excuse for the degraded election infrastructure we have. decentralization is a challenge. there is no question about it. and it does not mean that congress cannot step in and legislate uniform rules for federal elections. and congress can do so. then that gets caught up in the whole question of, which we saw in hr one. kohn up in the whole politics in which you have voting rules that one party favors universally opposed by the other party. as you know, that particular effort foundered. that will be an answer to the problem. silvia: absolutely. i also want to give some room for topics hr one. this is a very, very large scale voting access bill that also tackles suffer in different areas. campaign things. it stalled in congress. i think that a lot of people lawyers, and reformers welcome large aspects of it, but at the same time are frustrated. some of the coverage. do you see any areas that are not sufficiently [indiscernible] even if the hr one was to take place? see any areas that hr one has not adequately addressed or generally just your feelings about that? mr. bauer: hr one was ambitious. i think it is fair to say it would have been in -- an extraordinary achievement. the obstacles were going to be significant and proved ultimately to be fatal. one thing that did develop after hr one was put together and it was separately addressed, was the statutory framework that governs how congress counts the votes. hr one was written before the 2020 election. and then of course, it was tweaked along the way. a lot of attention turned towards the electoral count act. how congress concludes the tally of the votes in january. the year after the election year. after what happened in the capitol on january 6, the electoral count act hadn't been enacted in 1987, it was a disaster waiting to happen. that turned out to be something that the two parties could at least at the leadership level rallying around and do something about. the electoral count reform act that was passed -- i'm getting confused about which year we are in. that we recently passed and signed a law by president biden. billy a major bipartisan achievement. mcconnell and chuck schumer both sponsored it. there are certain fundamental institutional reforms that are possible. i think that specific types of voting rule reforms are going to occasion the kind of conflict that we saw that doomed hr one. too much of a difference between the parties. there is a wing of the republican party that is absolutely unwilling to have a conversation. as we think about reform under these very divisive conditions, we have to be realistic about what we might be able to accomplish. the electoral counter reform act is an example of something that can be accomplished. there are other things like that then we can do. silvia: so then the solution is rather than having sweeping bills, to break down into different areas where there can be some agreement on to try to make real advancements. mr. bauer: absolutely. when we talk about democracy reform, i think focusing on just elections is a mistake. we are also thinking about refunds that address the problem. aggregated power at the presidential level that can be abusively used. and so, there are a whole host of reforms following the trump administration where trump both innovated and other places where he built on the work of other presidents you give themselves a lot of latitude and discretion it areas that are potentially very risky for the democracy. you can say it is small, a niche reform. one reform did pass. a reform that was designed to prevent the president from corrupting the inspector general. manipulating the appointment of inspector general, getting rid of responsible inspector general's and substituting political cronies. abusing the vacancy laws so that they could take advantage of that kind of selfishness. there was a reform that went through on that, quietly went into the big spending bill. there are reforms like that. using emergency powers, both parties have an interest in preventing the other party from abusing the use of emergency powers. abuse of war powers, both parties know that though each have an occasion to complain about presidents exceeding their ward accusation -- declaration we shouldn't think just about elections. silvia: now i really do have to move on to this topic of the supreme court. i know that you were on the commission in 2021. i spent a good part of this week reading the commissions final report. one thing that i found very interesting was on the topic of court expansion and the commission explicitly states that the commission is not fighting in favor or in opposition of expanding the courts, because of the fundamental disagreements among the members of the commission. and then, i do want to ask, what is your personal opinion on the topic of courts expansion? silvia: i have been, for reasons that are both conceptual and technical, i have been skeptical about what is called court expansion, what critics call court packing. once you go down that road and each political party will respond to the other, and then we will have 100 and 70 members -- 170 members. it is not clear how this is going to work. help protect the courts and politicization. i do favor -- i will jump into something else, i personally favor term limits. i think that the commission chapter on that is very, very good. among other things actually tries to come to grips with the constitutional and technical questions that would have to be addressed for term limits to be imposed on justices. the trend that we have of everyone looking for the youngest possible justice to serve on the court for decades, and there are nine who wield extraordinary power in this country, i think that is a fundamental question of democratic reform. there are proposals for 12 year term limits, 18 year, i imperfectly comfortable with 18 year term limits. the report goes into how you could do that and make it stick and work functionally. but, that is a reform that i think is -- accomplishes much of what i would want to accomplish. silvia: thank you. absolutely. i think people of both parties in different decades have all experienced the same thing over the health of the sitting justices and what that would mean in terms of policy and reform. and, the third part of the commission report also talked about reducing the power of the supreme court. tell us how -- what your personal opinion is on th