I want to start with the Eric Adams news, specifically from a campaign finance point of view. Do you have any thoughts about what this manipulation of the New York City Contribution Matching Program will lead to in terms of public opinion or in terms of changes to it?
Professor Briffault: I don’t know whether it’s going to hurt it in terms of public opinion. I think there is a pretty good audit program that the Campaign Finance Board runs. It’s not always up to speed at the time things happen. As I understand they had all sorts of things to clarify and correct issues in his records. But that doesn’t mean they would have caught them—well, the feds didn’t catch it in time for the 2021 election either. Some years ago, they actually did catch a big straw donor problem and disqualified a major candidate so there have been a number of proceedings against people for cheating on the program.
It’s hard to tell whether that means it’s a success because they catch them or it’s a problem because we don’t know which ones haven’t been caught. So it is a vulnerability in the program, but I think with adequate staffing for the audit function they’ve caught a lot of people, and maybe they’ve caught the major ones.
For any kind of matching program, yeah, it is an issue. Maybe it’s something relevant in thinking about a matching program versus other forms of public funding like vouchers, which I guess people could figure out a way to cheat on too. But it wouldn’t be straw donors.
What are your thoughts on the effect that this indictment will have on the legal landscape? Does this set a precedent for federal prosecutors going after sitting mayors?
Professor Briffault: Much will turn on what actually happens. Can they get a conviction and can they sustain the conviction, given the way in which the Supreme Court has been steadily narrowing political corruption cases? So I think the jury is out—the jury hasn’t even been impaneled—but I think it’s way too soon to figure out what effect it’s going to have.
He could be vindicated in court by the jury. He could be convicted but have the conviction overturned. He could be convicted and the conviction be sustained, and then that would have an impact.
I think a good parallel to this case is a case we talked about in Leg Reg last year, Bob Menendez. What do you think these cases do in terms of public trust?
Professor Briffault: You need to do some polling on that. It’s hard to imagine it’s good for public trust. Yes, you could say we’re catching them, but I think people are probably more attentive to the fact that they’re doing it.
Maybe there’s some benefit in seeing that powerful people can be indicted and brought into court. Maybe one of the advantages of the prosecution against Trump was to show that even a former president can be prosecuted. On the other hand, people talk about weaponizing the Justice Department, and officials being gone after because of their politics, so I have no idea how it’s going on with the public.
When these prosecutions against public officials happen, what do you see as the role of a professor or of any expert in this field?
Professor Briffault: At the very least, it’s public analysis, public explanation, and education to help people understand what’s going on. Education, explanation, information—I would say that’s number one.
Secondarily, sometimes it may turn into advocacy and reform if the case brings out either something that we want to change about the criminal law or something we want to change about the underlying situation that generated the law. Maybe the case brings to light something that people weren’t fully aware of.
Going back to January 6th of 2021, that made people very aware of some of the problems with the electoral count process. And a lot of academics were involved in actually coming up with reforms to that. Not just explaining how the Electoral College works, but how some of the issues that surfaced in 2021 could be addressed. Some of those problems were addressed in legislation in 2022.
Related to that idea of education, how do you teach an area of law that a lot of law students feel jaded about? Maybe campaign finance is a good example. How do you approach teaching a subject like that?
Professor Briffault: My goal is to help people to understand what the law is and what the contending theories or forces or different ways of analyzing the problem are and ultimately let people decide for themselves.
Obviously, you have to make it clear what the rules are. But you also need to put it in a context where people can understand what the principal arguments and critiques or sources are—the theoretical backdrops, the context—and then get people to think about it for themselves.
What made you want to be specifically a Legal Methods professor?
Professor Briffault: I thought it would be interesting. I do think that a lot of what we do here in other courses is essentially Legal Methods. It’s getting people to understand how law works, how legal analysis works. Legal Methods importantly is an introduction to how Law School works.
Getting people to appreciate the nature of legal argument seemed like an interesting area. And I think it’s a worthwhile course, and I think getting people started is a good thing.
What makes you continue teaching Legal Methods?
Professor Briffault: Well, it’s only been five years. Why would I leave? It’s a fun class.
Actually, I don’t think you see very many people who start teaching it and stop. I can’t say that for sure, but most people who started just kept on doing it until they retired.
My colleague, Professor Strauss, taught it for a very long time until he retired. President Sovern taught it after he retired and to the end of his life pretty much. Professor Ginsburg has been teaching it for some years. But many senior colleagues stopped only because they retired.
Even within these five years, the law has changed so much, especially if you look at voting rights and constitutional law as a whole. How do you change your teaching approach or adapt to all of these changes?
Professor Briffault: In some ways the big challenge for a course like Legal Methods is introducing people to the way the system of precedent works, which is so central to our legal culture. The last couple of years have witnessed major departures, so that does become more of a challenge. I think precedent still matters. So it’s been kind of a challenge to get people to see that.
I don’t know that I feel I have a need to persuade people about the positive nature of the system. It’s mostly just to introduce people to more of the challenges to precedent and one of the reasons why it might not be sustained.
Do you think there’s a certain point where we start thinking about precedent differently?
Professor Briffault: People have always been aware that law occurs in a political context. Maybe we’re more aware now than ever; that’s all. But obviously, you can’t make those arguments in a court, so you have to figure out what arguments are acceptable in the legal culture.
It’s not an acceptable argument to say, well, those are a bunch of conservatives, and therefore, they’re going to go do what they want. You do have to make arguments that have a place in our legal system even if you doubt that they’re going to succeed. But you can’t say we can ignore that decision because that decision was written by Judge So-and-so, and we know all about Judge So-and-so.
That brings me to another point that came up in your Leg Reg class. What do you see as the relationship between law and policy?
Professor Briffault: They’re interpenetrated. Law inevitably has policy arguments. First thing, statutory law is policy driven. Regulatory law is policy driven. I actually don’t understand the difference.
What then do you think is the value of going to law school versus getting a master’s of public policy if you’re trying to do advocacy or work in that field?
Professor Briffault: I mean, I wouldn’t argue against getting a public policy degree. My wife is the dean of a public policy school.
I think part of what law school is very good at is getting people to see multiple sides of a problem, to articulate their positions, and defend them. And of course, law school is also very important to the extent that constitutional constraints and statutory constraints shape what policymakers can do. To the extent that you want to change policy, it’s typically going to show up in new laws and regulations. And law school is essential training for knowing how to write those new laws and regulations.
Turning to the topic of election law more broadly, I’d like to talk about your approach to teaching that topic in particular.
We talked about people coming in with preconceived notions of the system. And I’d be hard pressed to find an issue where that is more so the case than election law. People are very personally invested in each of the different sides of what policy is being proposed. How do you approach that, especially when you look at these cases where partisanship plays a role?
Professor Briffault: As with other things, I try to figure out what are the major concerns or issues in the area, and what are the major laws and legal materials, like the First Amendment, the Fourteenth Amendment, the Voting Rights Act, and the Federal Election Campaign Act. I try to explore what they say, what they mean, and what are different arguments for their interpretation. How do they work? Do they work? What are the extent of their problems with them? What are some of the ideas out there for changing them? And then to see how they play out in practice and responses to that.
I don’t think I teach it any differently than I teach any other subject.
How do you have a conversation where the students take the emotions out of it and try to understand it from a purely policy perspective? For example, we had a class today about vote denial, and that’s an issue that for many people really impacts a lot of members of their family. How do you talk about that issue?
Professor Briffault: The easiest way is if you’ve got a case where there’s a majority and a dissent. So you can get people to somewhat clinically go through what did each side say, what are the arguments underpinning each side, and what’s maybe the worldview on each side?
People can decide for themselves what they like and what they don’t like. But my approach is to make sure they understand the side they don’t like, what it’s about and what may be driving it. Then, that may even clarify further why they don’t like it. And maybe you can see what the mistaken empirical basis for it is if you think it’s mistaken. Or what the logical gap is. Or what kind of methodological error the side you don’t like is making.
You can’t avoid having strong feelings about these issues, but at some point you have to be able to at least step back and be a little clinical about it.
The passion comes in when you want to take a case or you want to seek a law reform or you want to campaign for something. But the clinical part comes in understanding what the rules are, understanding what the positions are, and understanding what the other side is all about. And you may never be able to persuade them, but you at least have to understand what they’re about.
Going more towards how election law impacts everyday people, we often hear about X Supreme Court decision that changes the doctrine in some way, but there’s many state and local administrative changes that happen all the time that heavily impact the ways in which people vote.
What are some recent election law changes or trends that you think people should know about even if they’re not as widely publicized?
Professor Briffault: It’s like the tale of two cities, but now the tale of two countries. Half the states or so have been trying to make it easier for people to vote, particularly to vote by mail. Making it easier to register. The other half of the states, roughly, are making it harder to vote and are making it harder for people to register or are requiring additional proofs: who you are when you register, who you are when you come to vote. These states are raising questions about the legitimacy of the process, calling for more investigations, and making noises that essentially are intended to scare people out of the process.
I think in some ways there’s always been partisanship in elections. There’s always been the assumption that some rules will help one side more than the other side on purpose. I think what we’re really reaching now is a kind of a level of regulation and rhetoric which is attacking and delegitimizing the process itself. And that, I think, is the most troubling.
Obviously, a lot of it comes out of the 2020 election: the attack on the Capitol and the entire election denial rhetoric that’s consumed a third or a half of the country since then. That is the biggest problem. I think people are aware of that. I’m not sure just how pervasive it is in terms of the people who are coming to power to regulate elections in many counties and states and the kinds of rules that are being adopted just to make it harder to vote.
Shifting away from the legal questions, are there any books that you read that you’ve been enjoying lately or any TV shows that you’ve been watching?
Professor Briffault: I tend to read somewhat seriously. If you need fun, I’ve now finished all nine volumes of the Slough House series. I’ve never actually watched the show, but I started reading the books. And I find them addictive, and I read all of them.
This summer, I read Tom Sawyer and Huckleberry Finn, which I had never read before. And I thought this was time to read them. But I do like spy novels, John le Carré. And I like spy satire, of which I think the Slough House books are the best.
TV shows are more weird because I tend to watch things that are on Netflix years later. Last night, I started to rewatch BoJack Horseman, which is one of my all-time favorites. I mean, the Seinfeld reruns are 40, 20 years old, but I can still watch them. BoJack Horseman is now at least 10 to 15 years old, but I literally watched one episode of BoJack Horseman last night because I think it’s such a great show.
I actually find myself watching a lot of police procedurals, particularly foreign ones. I can’t tell you one, there’s nothing coming to mind right now but German, French, Spanish. Actually, one was set in, of all places, Luxembourg called Capitani. So I do like to watch police procedurals. They can be a little violent. Well, the ones that are less violent are better. I’ve never done criminal law. I have no interest in criminal law myself, but I like police procedurals. I’m an old Law and Order fan.
What activities do you like to do to escape from a lot of the stress that comes from not only being an academic, particularly an election law professor around election season?
Professor Briffault: I do not watch television. I do not watch the news. Lately, I’ve stopped reading the news. I figure if anything is really important, I’ll see it.
We’ll go to the movies. We’ll go to the theater. Last night, I saw “Our Town.” I’m not sure I love the production, but it’s one of the greatest American plays ever. It’s the one with Jim Parsons as the stage manager. I think the opening night is Thursday, so there’ll be reviews. I thought it was meh.
My wife is a huge opera fan, so we go to the opera. I pick the shows. She picks the operas. We went to see “The Hills of California,” which is excellent. “Once Upon a Mattress” too. It’s mostly pretty traditional Broadway or not sort of innovative theater. We’ll go to pretty standard things. Not that many musicals, although “Once Upon a Mattress” was very funny.
Well, those were all my questions. I appreciate your taking the time to talk with me, Professor.
This interview was conducted by Alon Goldfinger ’25. It has been edited for length & clarity.