The real loser in the Tea Party wins is election reform.
As Democratic and Republican leaders fret, we don't know yet which party will be hurt more come November by the rise of the Tea Party. But there is already one sure casualty this conservative revolution: federal elections reform.
Tuesday's defeat of Delaware Rep. Mike Castle, in his Republican primary Senate race against Tea Party candidate Christine O'Donnell, spells doom for campaign finance bills in the next Congress. And the defeat of Kentucky Secretary of State Trey Grayson, who lost to Rand Paul in Kentucky's Republican Senate primary in May, could jeopardize the chance for a desperately needed federal fix for how we run our elections.
Campaign finance reform has long been a signature issue for Castle: He was one of only two House Republicans to vote for the DISCLOSE Act, which, among other things, would require effective disclosure of the steady flow of corporate and union election spending unleashed by the Supreme Court's decision earlier this year in Citizens United v. FEC. If Castle had moved to the Senate, he likely would have led on this issue and provided cover for some of his more skittish Republican counterparts. Maybe he could have persuaded them to vote with him on a more modest disclosure bill than the current version of the DISCLOSE Act, to which Democrats had added new corporate spending limits. Castle also was an important supporter of a bill that aims to fix our broken system of public financing of presidential elections.
With Castle gone, the chances for campaign finance go from slim to perhaps none in January. Sen. John McCain, in his move to the right to win re-election in Arizona, has given up the reform mantle. Olympia Snowe and Susan Collins of Maine, moderates on other issues, have not been willing to spend their political capital on this one. Neither has Massachusetts Sen. Scott Brown, despite intense lobbying from reform advocates.
Trey Grayson, the outgoing secretary of state in Kentucky, was a nationally respected bipartisan leader on election reform issues. He co-authored an important op-ed with Missouri Democratic Secretary of State Robin Carnahan calling on Congress to modernize the voter registration process to make it easier for people to register to vote and to eliminate voter registration fraud (a big issue in the 2008 campaign). Grayson had testified in Congress about these problems and was not afraid to cross the aisle to work on them. Neither Rand Paul nor any other Republican candidate for Senate—nor any sitting senator—has Grayson's comparable expertise and experience.
Meanwhile, New York's primary election Tuesday verged on chaos because of what New York Mayor Michael Bloomberg called a "royal screw-up" in rolling out new voting machines. The New York meltdown led Ohio State University law professor Ned Foley to ponder, nearly 10 years after the Florida meltdown and Bush v. Gore, whether it is possible for election administrators to be both nonpartisan and competent.
It is clear that there is still much work to be done to make the basic casting and counting of ballots go smoothly. Congress made a bit of progress in recent years, by funding new voting technology and tightening the process for casting overseas and military ballots. But even this latest fix is now mired in controversy, as conservatives claim that the Obama Department of Justice is giving too many states waivers from the new requirements in an effort to suppress (presumably Republican) military ballots. Meanwhile, the DoJ inspector general has announced an investigation into how the DoJ enforces voting rights rules, based on complaints from congressional Republicans about a controversy over whether the department failed to adequately prosecute a case against the New Black Panthers for intimidating voters in Philadelphia during the 2008 election. This, of course, follows years of Democratic criticism of how the Bush administration ran the DoJ.
The bottom line is that it when it comes to election reform, it doesn't really matter whether the Democrats keep the House in November. Without moderates like Castle and Grayson, they will not have the votes to overcome a Senate filibuster and get cracking. This is one of those issues to which few people pay attention until the machines break and the chads hang, or a secretly funded "Swift boat" attack launches, and then everyone wonders why we're still in a mess. It is going to take hard work and bipartisanship to fix our elections. Both just got a whole lot tougher to come by.
Richard L. Hasen is a professor of law and political science at the U.C. Irvine School of Law and author of The Voting Wars: From Florida 2000 to the Next Election Meltdown. He also writes the Election Law Blog.
Photograph of Mike Castle by Chip Somodevilla/Getty Images.