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Scott Harshbarger

Scott Harshbarger is a senior council at Proskauer Rose LLP, an international law firm. He was the president and CEO of Common Cause, a pro-reform 501(c)(4) organization from 1999 to 2002. Prior, he was a two-term attorney general of Massachusetts.

Josh Israel interviewed Harshbarger on April 29, 2008.

Just as a brief background, you started as a district attorney in Middlesex County, Massachusetts?

In terms of my political career?

Yes and your professional career.

I graduated from Harvard Law School in 1968 and then was two years with the Boston law firm of Goodwin Procter. I went to the Lawyers Committee for Civil Rights in Boston for two and a half years. Then I was the state public defender as deputy chief counsel and the attorney general’s office as chief of the Public Protection Bureau, which sort of oversaw environmental civil rights consumer protection. In 1978, I ran for district attorney in Middlesex County and lost to John Droney who was the incumbent district attorney.

I then became general counsel for the State Ethics Commission which had been newly formed under a common cause initiative and oversaw that for two and a half years. Then I returned to a law firm. In 1982, I ran for district attorney in Middlesex County and was elected and reelected in 1986. I ran in 1990 for attorney general of Massachusetts and was elected; reelected in 1994. In 1998, I ran for governor of Massachusetts and lost by 2 percent.

I then was a busy professor at Harvard Law School. In the summer of 1999, I was selected by the then-Chairman Derek Bok and Archie Cox to be CEO at Common Cause in Washington. I was there for three years during the McCain-Feingold period and returned to Boston to practice law at the end of 2002.

Was your experience with the ethics role what brought you to being interested in Common Cause?

I think at that point, aside from recovering from sort of my life after partisan politics, actually the professorship was a great opportunity at Harvard and Northeastern, and it sort of just came up serendipity. Common Cause was an organization that I had always heard a huge amount about from its founding by John Gardner in 1970. It was just one of those opportunities. I had not thought about Common Cause in particular. It was just an opportunity that came up at the time to sort of look at another type of leadership opportunity and to go to Washington, D.C., where I’d never worked or practiced. It was an organization that was seeking to sort of renew itself. It was just one of those interesting, challenging leadership opportunities.

It happened to be focused at the time of campaign finance reform. One of the big challenges was, and continues to be at Common Cause, how do you recapture its core functions of both ethics and government, public integrity, civic engagement, monitoring agencies, sort of watchdog role, the broader agenda of which campaign finance reform is an example of why Common Cause exists. It is not the sole reason, but it was sort of an interesting transition period for Common Cause. It was for me, also, a transition opportunity and a very exciting time to be president of Common Cause.

So there was no particular [reason], other than my general interest has been in good government and public policy and believing that in my campaigns, at least by most standards, I had basically run the premise that the best way to serve in these offices of district attorney and attorney general was to be the best professional you could be. In many respects, in Massachusetts, that was the best politics as well. People have come to believe that these offices ought to be run primarily by professionals and not by politicians. That was always one of my campaign themes and one of my beliefs as well. It worked very well for me and recruited wonderful people and all that. It just didn’t get me elected governor.

But that is the same sentiment that goes along with the values of Common Cause.

Very much so. Certainly I got to know that even more. It was actually as I came to learn about John Gardner, the founder of Common Cause and his writings and his theories and themes for why he created Common Cause in 1970. He died two years into my tenure, but I came to know him as an American hero, frankly. What was intriguing to me about it was that, as he said to me, he created Common Cause in 1970 to be a voice for the people, to make sure the people’s voices were heard in Washington and not just the special interest, and that the public interest had an advocate and not only the special interest. He said it wasn’t that we were trying to eliminate those; it was just to make sure that the people’s voice and the public interest were represented. People were angry and engaged and they participated in Common Cause.

It could have been any number of issues that Common Cause was going to represent. It turned out that given the historical circumstances it ended up being sort of the Vietnam War, Watergate, that led into the conflict of interests, ethics, financial disclosure that it became known for. It was as much about how you engage people in their democracy as anything else. That was the theory that sort of the whole effort was. How do you get the public’s interests represented and the people’s voices heard in a democracy? As I said, not to the elimination of money in the special interests, but to make sure that there was a balance and a voice.

That was very interesting to look at. That was a huge amount of what my professional and career had been about, I think, and the people who I thought, to some extent, my public heroes were about. In a way the Common Cause theory helped explain, I guess probably articulate for me, many of the themes that had run through my public policy and elected career. That continues to be a major focus of mine. How do we open our government in a way to make sure that you do have the people engaged? It’s not a spectator sport. Also, that citizens understand that they have an equal responsibility to hold government accountable as much as it only being government’s responsibility.

I think the Common Cause themes taken up by John Gardner helped me think about in a more global sense a lot of my thoughts about what I had been doing. It wasn’t why I came to Common Cause, but Common Cause was really very influential in how I did think about and do think now about the role of advocacy and democracy and citizens and our government.

You led the organization during the passage of the Bipartisan Campaign Reform Act in 2002. What, around then, were your hopes for what it would accomplish?

I hoped it would be simply the first step in a major continued reform that would lead at least to major public financing as the primary vehicle for fundamental reform in terms of campaign finance. The goal was how do you get the public financing, at least as a major alternative, at the state and federal level?

One of the big issues had been that even in passing something as incremental as the soft money bans and McCain-Feingold, all of us at least made the argument at Common Cause, this was just the first step. We hoped this was just proof that if we worked together, if we could build coalitions of various groups to pass this campaign finance reform, then other things could be done. Whether it was election reform, which was then coming up after 2000, whether it was public financing, whether it was various election reforms, various good designed to open government and to have the people’s voice be heard, that those things would be possible. The observation was that the progressive community was often its own enemy. We insisted on purity.

To some extent, part of the problem at Common Cause tended to be that the more we lost, the purer we felt. To some extent, we’re almost as critical of government and political leaders as people who hated government. It was not that we were necessarily wrong with government. As McCain said at the time, this is a corrupt system that taints even good people in it. The taint came from the way you have to finance elections. That also turned people off from participating because they thought that only if you had organized special interests or could, as Bill Moyers has said, that your civic worth was measured by your net worth, could you be heard. That made people cynical and they dropped out.

One of the beliefs was, if we could get rid of this large flow of corporate union money and wealthy special donors pouring money into the system, then we could achieve other reforms and at least make sure that there were contested elections and that the incumbency didn’t, by virtue of the ability to raise money, become totally dominant.

The other observations were, less than 50 percent of the people registered to vote were voting. Young people were turned off. Most congressional races were uncontested. It had nothing to do with party. The way campaigns are financed was an equal opportunity offender in that sense. The whole theory was, if we could just begin to make end roads here, maybe we could create a situation where somebody could run for office with public financing so they could focus on the public interest as opposed to the need to spend most of the time raising money — and raising money from maybe perfectly good people but special interests alone. That was it. You could see the impact. You’d seen it at the state level. It wasn’t a partisan issue.

In Massachusetts, at the same time the public financing law had passed, I have often said, at least facetiously, the only thing [many of my friends] forgot in 1998 when they passed Clean Elections was to elect the governor as well. That would have been the key piece to keeping it in play. The Democratic legislature did as much to stonewall and prevent and essentially repeal the Clean Elections Law as the Republicans in Washington were doing to prevent campaign finance reform.

To some extent, the Democrats, you could also argue, although it’s not always true, wanted to be for reform but they didn’t really want it to pass. They knew full well that if they got into power, it would be for their advantage. It was really more about incumbency. It was happening at the state level and in Congress. It also seemed to me, having had some experience with looking at this, that it wasn’t an accident that you had some of the policies that you did. Follow the money and you could sort of see why certain interests, at least in the legislative process, stopped things from happening. It’s not an accident we still don’t have a national tobacco control policy or a national gambling policy or a national gun policy. People figure how to stop Congress from enacting it.

Somehow, you needed to figure out a way to open the system up more than just what it was sort of theoretically or rhetorically. That was a lot of what we hoped. We hoped that that was the beginning, that we had shown we could work together in coalitions. To me, for Common Cause, it made such perfect sense. We were much better off as the leader of a coalition than trying to compete with people in the coalition.

So the opportunity that we could have to lead these — whether it was AARP or the environmentalists — various campaign finance people and pride ourselves on working together with others would have a much greater impact than simply being a very strong but sometimes, somewhat, almost always critical voice. We needed to show that if you supported us, we would support you, too. We couldn’t be partisan, but that didn’t mean we couldn’t make it clear for the people in Congress who were fighting the good fight against very powerful interests to achieve reform and also support the people that brought them. We needed to do more of that kind of thing.

It’s frustrating it didn’t occur. The hope was that we could just pass that. That was just the beginning. Nobody seriously believed that anybody who was for reform really believed that just banning soft money was all we needed to do. We needed to ban soft money so we could then proceed with other kinds of public finance. Of course, that’s been a miserably unsuccessful issue, totally unsuccessful. The presidential financing thing now is almost out the window. States beyond Arizona and Maine really have not moved into public financing. It has not been a successful crusade.

Do you think the ban on soft money has proved to be a positive?

Yes, I do. I think at least to channel it to other places. It sort of dealt with the obviously, what seemed to be basically illegal contributions, just using money conduits. You need to do other things to limit that. Once people create 527s, there is going to be money in politics. I think the goal I had, and still have, and why it’s so important in presidential races and congressional races, is at least to allow someone who wants to compete on some basis other than how much money I can raise to have a vehicle. It doesn’t even mean you get to win. It just means that you get to compete.

There’s something about contested races that is healthy for democracy. The incumbency rule is not healthy for democracy. People being continually held accountable through the election process not only is important for holding the government accountable, it’s also important for convincing people that it matters that they participate in this system.

I think what’s interesting about the race this year is, it seems to me at least — and maybe this isn’t a result that many people said the Internet would produce — sort of the grassroots organizing and the Howard Dean thing, which was sort of new. We didn’t really have Internet when McCain-Feingold was being passed. It now looks like we were in the old stagecoach days. It is conceivable that the democratization of the process, of the ability to raise money, has helped a great deal to allow somebody to compete based on message and getting people involved. That tends to, therefore, generate money.

That’s the very positive piece about both Howard Dean’s campaign and Obama’s campaign, and you can even argue Ron Paul. People stay in because they can now find ways, other than through large corporate gifts and large major donors, to compete. The Buying of the President book has always made an interesting book. One of the pieces that I don’t know that I consciously focused on until I started to think about it that way was, many people are eliminated before we even get to the first primary. The irony in this election this year is people are exhausted because they’re saying there are too many primaries. Most of us as reformers should be exalting in this.

Finally, the people are deciding elections. It really is a new phenomenon. Up until now, I would argue that 2000 happened for the first time. George Bush didn’t take public financing. When you think about it, he won that nomination, and seven people who could arguably — a former vice president, at least one or two Cabinet secretaries — had to drop out, not because the people didn’t vote for them but because they couldn’t raise the money. Four years later, the Democrats realized that was the only way to sustain themselves, not to participate in public financing.

I think the irony is that what you see in the Obama candidacy, at least at one level, to me, is representative of something very positive, which is if you have a message, you can fire people up, you will get the money to compete. It doesn’t mean you’ll win. As John Gardner used to say, the point about democracy is that you’re entitled to be heard, not entitled to win.

I think that’s what I always thought campaign finance reform was about, giving people an opportunity to run and giving people the selection without it being a “wealth primary,” if you will. You can compete based on your content and your character and not only have to do it based on money. Again, I would say, it doesn’t mean that you would win, but my own experience has been, even though I’ve done it as an incumbent as well as a challenger, by and large, it’s a much healthier process for people.

If there is a healthy, contested race, most incumbents will win and they should on their merits. They don’t need to have the money advantage, too. What the money advantage does is stop people from contesting them. It doesn’t prevent them from winning. Most incumbents, in my view, for whatever reason, often on the merits, will win their races. They view it as an inconvenience to have to run for office. The raising of money becomes a way to prevent contested elections rather than simply to win your election.

The presidential race is different now. We see the Internet has helped with that, sort of opening up other sources of revenue. I must say, I don’t think that campaign finance reform efforts have ever achieved the goals that I still think we would want to have for them. It may well be because it was framed only as a money issue as opposed to — I think our effort had been created as a way to energize democracy and energize participation and civic engagement and getting people off the sidelines and getting people engaged in the process. Then whoever won might win because they can raise more money, might win because they can stay competitive. That can also be just better strategies as well as more money. That was the goal, to open up democracy rather than simply to have campaign finance reform for its own sake.

On the presidential level, we’ve had the public financing system in place since the ’76 elections. You mentioned that Republicans opted out for the primary matching in 2000. The Democrats followed suit in 2004. Just about all of the real contenders opted out for the primary. It looks like, for the first time, at least senators Clinton and Obama are seriously considering opting out for the general, should they be the nominee. Can this system be salvaged or do we need an entirely different kind of public financing system?

I think it can be salvaged, but it’s going to take the will of the people and Congress to do it. One could argue, and many people have proposed since 2000, that there are plenty of ways to solve that system. One is to extend it to the primary season, the opportunities for public financing. Make the numbers realistic and adjustable. There is no question that you could find a way. One could always argue, and it’s a reasonably compelling argument, are you better off spending $1 billion of the public’s money to elect a president or to have that $1 billion raised from special interests, which essentially it is, whether they’re good people or whoever they are, under the present system.

You could argue as a public policy matter that it would be much better for people. You would ultimately save money by having the public finance that election. The arguments are First Amendment arguments: I’m making me pay for somebody I don’t agree with. In my view, we have never mobilized sufficiently to make the case. I think that there is nothing inherently wrong with public financing. By definition, it has to be well financed. It has to be able to pass constitutional muster. The way to do that, I’ve always thought, has been to offer a viable alternative to people.

The second reason is, if you don’t do it, you’ve got to pay a price. Today, if you’re an elected official, you’ve got to be a fool to opt [out], if you’re going to win and want to win. I hate to say it that way, but as much as I’d like to see Senator Obama and Senator Clinton be held to their pledges, along with John McCain, the fact is, it is more important to me, frankly, that people who are good people win and that we hold them to some process rule alone. Especially when that process is not going to get you votes.

This is the problem with the reform community. We make it tough as hell for people in an elected life, and rightly so. But then when they adhere to our thing, we don’t support them. We can’t prove to you that if you stay with us on reform, we’ll help you win your election. We’ll just give you a big point. You’ll get an award from us. But you’re going to have to go out and get special interests to help you win an election.

Special interests stay with the ones that brought them. I think as a real legitimate criticism of the advocacy of reform community that we do not. We too often break into our special interests, our own special interests. Look at the campaign finance reform movement. If you’re for public financing, it was almost seen like the people who were just for soft money as if they were Mitch McConnell. You treated them as enemies rather than, “OK, we just disagree but we’re fundamentally together.” We tend to want to have it all our way. You can’t do that. It’s a nice ideal. Deal with the system you have. The system you have requires people to mobilize and to support people who stand by your principles. We do not do that. Or put another way, we might admire you for standing by that, but we don’t agree with you on three other policies.

What happens is the other policies trump the reform policy. We’ve never been able to make the reform policy the number one priority, even though we argue, “That’s the key to getting environmental reform or consumer reform or bankruptcy reform or economic justice, to figure out how we change the financing system.” At the end of the day, we will vote for our substantive issues. That’s what mobilizes, that’s what fires us up. Good government doesn’t fire us up. It makes us angry, and we might be against somebody for that reason. We don’t vote for people. Elected officials know that. They’ve now learned that, sadly. We, as reformers, love to be critical and love to advocate.

When push comes to shove, we are often not there in the trenches, supporting people who have staked a huge amount of political capital on reform and particularly things like public financing and campaign reforms, election reform, strong ethics laws. We have not done the job. It’s just that other interests seem to be more important to people.

Is there something of a Catch-22 there?

Yeah, I think there is.

You can’t exactly have Common Cause PAC throwing out $10,000 contributions.

That’s a very good point. That’s why some people went ahead and did the 527s and decided to say, “If we can’t beat them, we’re going to join them.” I’m not saying that the people who articulated this are wrong. I just think what we haven’t figured out is we haven’t gone out and done the retail politics. We haven’t gone out and demonstrated that if you stand for reform, we will help you get elected. Not by money, but by numbers, by mobilization. We can turn out a reform community that will vote for you. Republican or Democrat, we’ll help you sustain. What happened in Massachusetts? The lesson that happened here was, when the Democratic legislature decided not to support clean elections, people tried to get it on a referendum. We got whipped. That shouldn’t have happened. We should have been able to win that to show that there’s still political power out here.

I don’t think we can sit here and say: “Well, it’s a bad system. We know what the right answer is but we just can’t get it because politics is cor