Q: So you don’t think their purpose was to help President Bush win the election?
RYDER: Well, I don’t — I wouldn’t know that. I couldn’t have coordinated with them. (laughter)
Q: And you know, most people are somewhat cynical about the idea that there’s no coordination between the official campaign and these independent groups posting advertisements on behalf of that candidate? Is that a suspicion that is warranted by the (inaudible)? Is there — are there sort of behind-the-scenes conversations taking place about, “Here’s what we’re planning to do,” or “here’s what would be helpful for you to do,” or anything like that?
RYDER: Well, I mean, everybody in Washington breathes the same air, drinks the same water, goes to the same watering holes, and, you know, eats the same steaks. So you know, there’s certainly a lot of common conversation. [00:44:00] But people are pretty careful about not doing anything that the Federal Election Commission would deem as coordination.
Q: Let me ask you a big question about the long-term consequences of the 2004 election. But I want to make sure you address in the course of that this big point you’ve made about 2000 being the inspiration for what started manifesting itself in 2004, in terms of increasing involvement of lawyers. And you mentioned, sort of, voting procedures in the states earlier, and then you just mentioned trying to help find some way for the parties to keep raising money within the confines of this new law. Talk more about that, in the course of addressing the long-term consequence of the elections. Because that’s something I haven’t seen really talked about, and I wonder how it’s affecting [00:45:00] the electoral process in ways that voters would feel.
RYDER: Well, for a very long time in this country, political parties were treated as unregulated voluntary associations. And political parties are voluntary associations. I mean, if — one of the things that I’m always struck by is — in Democracy in America, in Tocqueville’s book, he talks about the voluntary association as being really a quintessentially American characteristic. Americans see a problem and they pull together a group of friends and neighbors and likeminded individuals, and organize themselves to solve it. They don’t sit around and wait for the government to design a program to solve the problem, or at least historically that’s been the case. And so political parties, I think, grow out of that [00:46:00] quintessential American characteristic of organizing ourselves into groups to address our concerns. And then you get to this very interesting state that we’re in now, where politics and parties have become a highly regulated industry. And there’s a fundamental tension between the regulation of politics in the “public interest,” and the First Amendment, which says that Congress shall pass no law — shall make no law abridging freedom of speech or the freedom of association. And political parties are all about free speech and freedom of association. So on the one hand, we have this broad constitutional principle. On the other hand, we have a lot of people who, for the most part, are well [00:47:00] intentioned, who think that politics needs to be regulated in the public interest so that you have such absurdities as the Ohio commission that is charged with the duty of determining whether any political advertising is false. And they — that — this was just — there was an argument before the Supreme Court within the last week: Susan B. Anthony List v. Driehaus. You know, I think this is something that the founders could never — (laughter) would never have imagined and probably would have taken to arms if they thought the government itself was going to regulate your ability to put out a broadside attacking your political opponent. Even in pretty tough [00:48:00] language. And you know, the course of American history, of American political history, has been that campaigns are pretty rough. And people say a lot of tough things. So what we’ve gotten to is this kind of regulatory mindset where there is a general theory that, well, if there’s a problem, we’ll just regulate it. So we’ll regulate campaign contributions, we’ll regulate political speech, we’ll pass laws that say you can’t attack your opponent within 60 days of the election — as one subsequently found unconstitutional provision of McCain-Feingold provided. And when you start regulating, then immediately you get an influx of lawyers because… One of my favorite characters in legal history [00:49:00] was in real property law. And there’s a guy named — in the 15th or 16th century named Orlando Bridgeman. Great lawyer in the Anglo-Saxon tradition. Every time Parliament passed a law trying to regulate the way people could pass property onto their descendants, Bridgeman came up with a new device to get around it. And he’s the guy who created springing trusts and springing uses and a lot of things that lawyers only remember from their initial property course. But that’s what happens in the campaign and political world. As soon as Congress passes a law or the FEC adopts a regulation or a ruling, saying these are the limits of what you can say and how you can say it and how you can raise money to spread the word about what you said, a team of lawyers is at work trying to figure out, now, how do we get around that? I’m not sure that’s healthy. [00:50:00] I mean, I’m not sure that we aren’t better served by just having a more wide open system, let all the voices be heard, let them be heard at whatever decibel, level the people will tolerate, and let the people ultimately decide.
Q: That’s part of what I hear you saying, but I also heard you earlier talking about very closeness of the 2000 election and the anticipated closeness of 2004 that got the parties and the campaigns organizing teams of lawyers, not to deal with matters of federal legislation, but —
RYDER: But to deal with — oh, absolutely. To deal with the mechanics of the election and counting the votes.
Q: The last couple of elections haven’t been as close. I mean, ’08 and ’12. So is there less of that sort of —
RYDER: No. No, it’s increased, if anything.
RYDER: The number of lawyers that each side prepares to deploy in connection with an election has increased [00:51:00] with each election cycle. And because, certainly in the last election, in 2012, the polling on the Republican side, which turned out to be badly flawed, led a lot of people to believe that the election was going to be very close and, therefore, all of these lawyers were prepared to be sent in to potential battleground states or sent to deal with recounts at other levels, whether it’s a Senate election, like the recount involving Al Franken in Minnesota — that was what, 2008? And so you have different — you can recount at a lot of different levels. And because of what I would call the Gore effect, people are more willing to go to court to challenge election results now than they — than they have been previously. [00:52:00] And in fact, the tendency now is the margin of litigation gets wider and wider. People are willing to litigate more extreme cases. If you have an election that’s decided by a couple of hundred votes out of a couple hundred thousand, that’s a close election. I don’t think anybody — I don’t think any experienced election lawyer would tell you that you shouldn’t go to a recount or you shouldn’t have some kind of review process on an election that’s that close. If you have one that’s 3,000 or 5,000 votes out of 100,000 votes, most experienced election lawyers will tell you you’re not going to shift that many votes. There just — even with all of the flaws of the election system we have in this country, it — you know, the volunteer nature of things, the temporary nature of the employees — whatever inadequacies we have, [00:53:00] the system is actually fairly honest and the results are pretty good in the sense that you might shift a couple of hundred votes in a recount, but you’re not going to shift several thousand.
Q: Other long-term consequences?
RYDER: Well, the other long-term consequences that I think you saw, Bush, in 2004 — the Bush team in 2004 solidified the progress the Republicans were making throughout rural America and particularly throughout the rural South. But in the victory of 2004 were the seeds of future disasters, in the sense that 2000, 2002, 2004 were all one on a model of turning out the base. [00:54:00] And consequently, the Republican Party, as a whole, did not invest as much resource as it should have in trying to win converts. Go to a campaign school in that era and what you’d see is the consultant writing on the board that a, b, c, d, e. So you have the a voters, the b voters, the c voters, the d voters, and the e voters. And usually just write off the d’s and e’s.