FIXING THE VOTE Wendy Weiser, Michael Waldman, Myrna Pérez, Diana Kasdan CONGRESS AND THE CRISIS IN THE COURTS Alicia Bannon REFORMS TO CURB MASS INCARCERATION Inimai Chettiar, Lauren-Brooke Eisen, Nicole Fortier NATIONAL SECURITY, LOCAL POLICE Michael Price PLUS: DEMOCRACY TODAY Bill Moyers ‘MONEYBALL’ FOR CRIMINAL JUSTICE Peter Orszag ON POLITICAL POLARIZATION Richard Pildes, Monica Youn, Robert Bauer, Benjamin Ginsberg WILL SOCIAL MEDIA CHANGE OUR POLITICS? Walter Shapiro THE LIES WE TELL ABOUT THE RIGHT TO COUNSEL Andrew Cohen AN INNOVATION MOMENT FOR CAMPAIGN REFORM Gov. Andrew Cuomo, AG Eric Schneiderman, Lawrence Norden, Rep. Chris Van Hollen, Lawrence Lessig1 The Brennan Center for Justice at NYU School of Law The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that seeks to improve our systems of democracy and justice. We work to hold our political institutions and laws accountable to the twin American ideals of democracy and equal justice for all. The Center’s work ranges from voting rights to campaign finance reform, from racial justice in criminal law to Constitutional protection in the fight against terrorism. A singular institution — part think tank, part public interest law firm, part advocacy group, part communications hub — the Brennan Center seeks meaningful, measurable change in the systems by which our nation is governed. About Democracy & Justice: Collected Writings 2013 The material in this volume is excerpted from Brennan Center reports, policy proposals, and issue briefs. We’ve also excerpted material from public remarks, legal briefs, congressional testimony, and op-ed pieces written by Brennan Center staff in 2013. The volume was compiled and edited by Jeanine Plant- Chirlin, Jim Lyons, Erik Opsal, and Kimberly Lubrano. For a full version of any material printed herein, complete with footnotes, please email [email protected]. © 2014. This paper is covered by the Creative Commons “Attribution-No Derivs-NonCommercial” license (see http://creativecommons.org). It may be reproduced in its entirety as long as the Brennan Center is credited, a link to the Center’s web page is provided, and no charge is imposed. The paper may not be reproduced in part or in altered form, or if a fee is charged, without the Center’s permis¬sion. Please let the Brennan Center know if you reprint. 2 Brennan Center for Justice Introduction from the President Our political system’s long slide toward dysfunction tipped into crisis in 2013. Amid shutdowns and debt ceil- ing drama, for the first time, government dysfunction ranked highest among Americans’ concerns about the well-being of our nation. So we have to do what Americans have done every time our institutions fall short of our values. We can’t just complain. Despite filibustering and gerrymandering, Super PACs and shutdowns — we can do better. That’s where the Brennan Center for Justice comes in. We start with research. We communicate widely. We craft reforms. And we fight for them in court. That’s the way Americans have always made legal change. Over the past few years, the Brennan Center has become one of America’s most effective nonpartisan voices for democracy and justice. When we have to, we fight to defend our values. Hours after the Supreme Court gutted the Voting Rights Act, states across the country erupted in a festival of voter suppression. We are fighting back. But defensive fights — even defensive victories — are not enough. More than ever: If we don’t fix our systems, we won’t solve our problems. This is the Brennan Center’s next great mission. We aim to become the dynamic center of a new generation of reform ideas. And we’re off to a great start. Our voter registration modernization proposal would guarantee that every eligible American could vote. Nine states enacted parts of our plan in 2013. Our proposal for an independent oversight for the NYPD is now law. In New York State, we came within one vote of passing small donor public financing and com- prehensive reform. And The Washington Post hailed our “smart” plan to reform federal funding to reduce mass incarceration. This volume offers a sample of this great work from 2013. We are continuing the fight in 2014. Already, our voting reforms have seen bipartisan consensus in — of all places — Washington, D.C. In January, lawmakers introduced a bipartisan bill to strengthen the Voting Rights Act. One week later, President Obama’s voting commission released new ideas to improve access to the ballot box. In New York, Gov. Andrew Cuomo included public financing in this year’s state budget. We take our charge from Justice Brennan and his notion of the living constitution — which, at its heart, reflects the core values of our Declaration of Independence — that we are all created equal. Every day, our works seeks to hold America accountable to that fundamental ideal. Michael Waldman President 1 Democracy & Justice: Collected Writings 2013 Table of Contents Democracy and Justice Today 5 ‘That Sound You Hear is the Shredding of the Social Contract’ 6 Bill Moyers Voting Reform 11 Playing Offense: An Aggressive Voting Rights Agenda 12 Michael Waldman Early Voting: What Works 18 Diana Kasdan Modernizing Voting: States in the Lead 24 Wendy Weiser, Hon. Ross James Miller, Hon. Alvin A. Jaeger, Hon. Kate Brown, Hon. Mark Ritchie, and Beverly Hudnut Breakthrough Reform in Colorado 28 Myrna Pérez and Jonathan Brater Presidential Panel Can Modernize Elections 30 Wendy Weiser and Jonathan Brater Virginia’s Step Forward on Restoring Rights 36 Carson Whitelemons Money in Politics 37 Will Social Media Transform Politics? 38 Walter Shapiro Albany’s Tax Break Racket 40 Lawrence Norden and Ian Vandewalker Bring Small Donor Matching Funds to New York State 42 Gov. Andrew Cuomo (D-N.Y.) Special Interest Spending Swamps Judicial Elections 46 Alicia Bannon Restoring the Voters’ Trust in NYS Government 48 Peter L. Zimroth Sunshine for Nonprofits 50 New York State Attorney General Eric Schneiderman Bringing Dark Money to Light 53 Rep. Chris Van Hollen (D-Md.) Think Citizens United Was Bad? Wait. It Could Get Worse. 57 Lawrence Norden Understanding True Corruption 59 Prof. Lawrence Lessig What We Can Learn from Nixon’s Milk Money 63 Ciara Torres-Spelliscy Voting Rights at Risk 65 A Decision as Lamentable as Plessy or Dred Scott 66 Andrew Cohen Voting Rights: The Courts Must Step In 70 Congress Must Move on Voting Rights Act 74 Myrna Pérez Challenging Voter Registration Restrictions 76 Government Dysfunction & the Courts 79 Political Polarization: The Great Divide 80 Michael Waldman, Monica Youn, Robert Bauer, Benjamin Ginsberg, Samuel Issacharoff, Richard Pildes, and Sean Cairncross Congressional Dysfunction Yields a Crisis in the Courts 85 Alicia Bannon The Virtual Filibuster 87 Burt Neuborne Why Gerrymandering Doesn’t Explain Congressional Extremism 90 Walter Shapiro Why the Senate Went ‘Nuclear’ on Filibusters 93 Victoria Bassetti A Modest Proposal for Senate Blue Slips 95 Andrew Cohen The Strange Alchemy of Life and Law 97 Justice Albert “Albie” Louis Sachs Mass Incarceration 101 ‘Moneyball’ for Criminal Justice 102 Peter Orszag Reducing Mass Incarceration: Move to Success-Oriented Funding 104 Inimai M. Chettiar, Lauren-Brooke Eisen, Nicole Fortier, and Timothy Ross The Lies We Tell About the Right to Counsel 108 Andrew Cohen Ending Mass Incarceration is Pro-Growth and Pro-Family 110 Inimai M. Chettiar Incarceration is Only the Beginnning 111 Lauren-Brooke Eisen To Reduce Recidivism, a Bright Idea from California 112 Andrew Cohen The Promise of Equal Justice Rings Hollow 114 Nicole Austin-Hillery What Real Drug Reform Would Look Like 116 Inimai M. Chettiar Moving Beyond Mandatory Minimums 118 Jessica M. Eaglin Liberty & National Security 121 The Spying on Americans Never Ended 122 Elizabeth Goitein Is the Government Keeping Too Much of Your Data? 124 Rachel Levinson-Waldman Oversight Will Help, Not Hurt, the NYPD 127 Frederick A. O. Schwarz, Jr., Victor A. Kovner, and Peter L. Zimroth Big Brother’s Sibling: The Local Police 128 Michael Price The NSA Owes Us Answers 130 Rachel Levinson-Waldman Privacy After Petraeus 132 Faiza Patel, Hon. Danny Julian Boggs, Kenneth Wainstein, Laura Murphy, and David Lieber Beyond Bradley Manning 136 Faiza Patel DEMOCRACY AND JUSTICE TODAY ‘That Sound You Hear is the Shredding of the Social Contract’ Bill Moyers The veteran journalist, in a powerful address, warns that our democracy is at risk. met Justice Brennan in 1987 when I was creating a series for public television I called “In Search of the Constitution,” celebrating the bicentennial of our founding document. By then he had served on the Court longer than any of his colleagues and had written close to 500 majority opinions, many of them addressing fundamental questions of equality, voting rights, school segregation, and, in New York Times v. Sullivan in particular, the defense of a free press. Those decisions brought a storm of protest from across the country. Although he said he never took personally the resentment and anger directed at him, he did subsequently reveal that his own mother had told him she always liked his opinions when he was on the New Jersey court but wondered, now that he was on the Supreme Court, “Why can’t you do it the same way?” His answer: “We have to discharge our responsibility to enforce the rights in favor of minorities, whatever the majority reaction may be.” Although a liberal, he worried about the looming size of government. When he mentioned that modern science may be creating “a Frankenstein,” I asked, “How so?” He looked around the chamber and replied: “The very conversation we’re now having can be overheard. Science has done things that, as I understand it, make it possible through these drapes and those windows to get something in here that takes down what we’re talking about.” That was 1987 — before the era of cyberspace and the maximum surveillance state that grows topsy-turvy with every administration.