On Politics, Law, and Elected Office: Jeff Bingaman, Former United States Senator from New Mexico, in Conversation with Professor Pamela S. Karlan

Jeff Bingaman, JD ’68 – Former United States Senator from New Mexico

THESE DAYS, JEFF BINGAMAN, JD ’68, DOESN’T MISS THE SENATE MUCH—OR ENVY HIS FORMER COLLEAGUES STILL THERE. He was ready to retire in 2013 after 30 years as a senator from New Mexico. It was time, and the place had changed.

“It would be difficult to get much done there now, I think. I watch what’s going on and I don’t see a whole lot that I could accomplish,” he said in the interview that follows.

A leader in the Democratic Party, Bingaman did manage to get things done over the five terms that he spent in the U.S. Senate, where he served on the Senate Finance Committee and chaired the Senate Energy and Natural Resources Committee. He also served on the Committee on Armed Services; Committee on Health, Education, Labor, and Pensions; and the Joint Economic Committee.

He was the lead champion of the Clean Energy Standards Act of 2012, which would have required greater use of low-carbon energy sources. He played a major role in the passage of the Energy Policy Act of 2005 and was the lead sponsor of the Energy Independence and Security Act of 2007, which required a historic increase in vehicle fuel economy, boosted homegrown biofuels, and mandated the most sweeping energy efficiency legislation ever to be put into law. And he’s proud of his accomplishments.

“We passed important energy legislation in the 2005 and 2007 bills. I felt some satisfaction in the work I did with the Affordable Care Act. I was very involved with it in

both Senate committees that I worked on that had jurisdiction over the ACA. And we passed some major public land legislation, which I was very glad about,” he says. Though, of course, much of the work Bingaman did on clean energy may be undone by the current administration—but he doesn’t expect progress to stop completely. “The major factors that will determine what happens in these areas are economics and developments in technology. Public policies can accelerate these trends, or decelerate them.”

On Politics, Law, and Elected Office: Jeff Bingaman, Former United States Senator from New Mexico, in Conversation with Professor Pamela S. Karlan 2
Illustration by David Plunkert

Bingaman’s start in government service began soon after law school, but he knew from an early age that he wanted to go into politics. He was active in Democratic politics when he was at Stanford and volunteered for Robert Kennedy’s presidential campaign during the California primary. He was appointed assistant New Mexico attorney general in 1969, and then after eight years in private practice he was elected state attorney general in 1978. It was, he says, a great job—one he would have kept doing if there hadn’t been term limits. His career in the U.S. Senate began with an upset election in 1982 when he defeated the Republican incumbent Harrison Schmitt.

Right after retiring from the Senate, Bingaman came to Stanford for a year to work on energy issues as a distinguished fellow with the Steyer-Taylor Center for Energy Policy and Finance. During that time, he helped produce a report on policies to assist states and local communities in advancing increased use of clean energy and encouraging them to adopt policies to promote increased generation of electricity from renewable energy sources in the form of Renewable Portfolio Standards. But then, rather than returning to D.C. and perhaps lobbying as so many former government officials do, he chose instead to move back to New Mexico—to spend time with his wife, Anne, JD ’68 (BA ’65), and their son and family. He keeps up with what’s going on, continuing to work on issues that have always been important to him. But he’s happy to be back home—away from the political stalemate that is Washington today.

Pamela S. Karlan – Kenneth and Harle Montgomery Professor of Public Interest Law and Co-Director, Supreme Court Litigation Clinic

IT’S HARD TO PIGEONHOLE PAM KARLAN. A LEADING CONSTITUTIONAL SCHOLAR, and also a clinical teacher, she combines research and action. A skilled litigator, she co-founded Stanford’s Supreme Court Litigation Clinic in 2004, the first of its kind at any law school. Since its launch, the clinic has compiled a record that would be the envy of any appellate practice, representing parties in more than 60 merits cases before the Court. (It has represented amici and parties at the certiorari stage in dozens more.)

Karlan’s connection to the Court began with her clerkship for Justice Harry A. Blackmun, whose legendary attention to detail and to language she tries to pass on to clinic students. Since that time, Karlan has argued seven cases—her first, Chisom v. Roemer, in 1991 and her last five as an instructor in the clinic.

A dedicated advocate for civil rights, Karlan has extensive public service both before and during her academic career. Most recently, she spent 20 months in Washington as a deputy assistant attorney general in the Civil Rights Division at the U.S. Department of Justice. There, she oversaw its Employment Litigation and Voting Sections and its Office of Special Counsel for Immigration-Related Unfair Employment Practices. While at DOJ, she received the Attorney General’s Award for Exceptional Service as part of the team responsible for implementing the Supreme Court’s landmark decision in United States v. Windsor, fittingly enough one of the clinic’s most notable victories. She also received the DOJ’s John Marshall Award for Providing Legal Advice.

One of the nation’s leading experts on voting and the political process, Karlan helped establish the new field of law and democracy and is the co-author of The Law of Democracy: Legal Structure of the Political Process. In 2000, Karlan was thrust into the spotlight because of that expertise, translating legal jargon for the public as Bush v. Gore held the attention of the nation. By her count, she appeared on Nightline 7 times and the PBS News Hour 11 times—all in a 20-day period.

An award-winning teacher, Karlan has said that in a lawyer, courage is a muscle. “You develop courage by exercising it. Sitting on the fence is not practice for standing up,” she told Stanford Law School’s Class of 2009 when she received her second John Bingham Hurlbut Award. Today, in the aftermath of the 2016 election, her expertise is once again central to our understanding of political events.—by Sharon Driscoll

KARLAN Now is an especially great time to be talking. The U.S. Senate has been called “the world’s greatest deliberative body.” How does that description fit with your experience?

BINGAMAN I don’t think that the label really applies very well to the Senate now and didn’t even during much of the time I was there. There wasn’t near as much deliberation as some observers might think.

KARLAN What’s changed, and to what do you attribute the changes?

BINGAMAN My view is that the deterioration of the function of the Senate in recent years has been the result of three different factors. One is the use of the threat to shut down the government, and the actual shutting of the government. That began in 1995, when Gingrich was speaker, and it continues to the present time. It’s now commonplace to see articles asking “What’s going to happen when the continuing resolution expires?” and “Are they going to be able to keep the government functioning?” So that was not the case for the first 12 or so years that I was in the Senate. The second is the threat of defaulting on the national debt. That’s another major problem that has added to the dysfunction in the Congress. That sort of gained momentum earlier and it finally came to a head in 2011 when we had a downgrading of the credit rating of Treasury bills and federal lending. The third is the abuse of the filibuster in the Senate. Those are the three factors that significantly increased the dysfunction of the Congress and the Senate while I was there.

KARLAN So why do you think the new level of dysfunction happened when it did? Without Speaker Gingrich would things have gone on differently? The filibuster was around for generations and the shutdown of the government, at least theoretically, was possible for quite some time.

BINGAMAN I think what was different was that the leadership in the two houses of Congress began to embrace these—shutting the government down, defaulting on the debt—as tactics in their negotiations with Democratic presidents. They used them first in negotiations with Bill Clinton. That was, of course, in the mid-90s. Then they revived them again when Obama became president. Before that there were people in Congress who would certainly entertain the idea of shutting the government down, but they weren’t the leadership of the House and Senate. The leadership, in my experience, felt an obligation to maintain a functioning government and keep us from defaulting on the debt. They would resist efforts by individual members to do anything to the contrary. That’s what changed. Why it changed? Maybe it’s the growth of increase in polarization in the electorate. I think that’s clearly part of the explanation. The institutionalized polarization that has developed in our media—I think all of that has contributed to it as well.

KARLAN For a fair number of years, you and Senator Domenici were the longest serving duo from a single state in the Senate, and you were from different parties. The country, as you say, does seem to be getting much more polarized. So, the ability of people to work across the aisle—even when they actually come from the same state—seems to be declining.

BINGAMAN I think that’s right. And, of course, I see things from a Democratic perspective, but my perception is that the major cause of a lot of that is that Republican members of Congress are deathly afraid of having primary opponents who are further to the right in the political spectrum and, accordingly, there’s much more reluctance about working with Democrats and trying to find compromise positions. That’s what I observed on quite a few different issues.

KARLAN I wonder if there’s some kind of historical parallel here. People used to talk about the New Deal Democratic coalition as being made up of a number of groups that were in some degree of tension with one another. Is today’s Republican coalition similar? We’re now seeing Republicans in Congress disagreeing among themselves and sometimes resisting an ostensibly Republican president.

BINGAMAN  Yeah, I think that’s right. And I think many of the tactics I complain about were first used by Republicans against Democratic presidents and are now being used by the right wing of the Republican Party against its own leadership in the Congress. So, you’ve got Ted Cruz and others there in the Senate who are basically outliers in the sense that they are objecting to Mitch McConnell cutting any kind of a deal with Democrats. So, I do think the dynamic has shifted. The growth of a very active, far-right element in the Republican Party is a big part of what’s driven the change.

“I think that getting an informed public to make an informed decision about their representation in government becomes more and more difficult as you have these enormous amounts of money available to put into media.”

––Jeff Bingaman, JD ’68

KARLAN Why do you think there has been this resurgence of the far right? And why now?

BINGAMAN  Some of it is the stagnation of wages for the middle class—so it is economic adversity that some people face. And you’ve had a very effective nurturing of this by the right-wing media organizations; you’ve had very strong financial support for building the far-right elements within the Republican Party, and all of that has been pursued here for the last couple of decades.

KARLAN Is there anything we can do to fix this?

BINGAMAN  Well, I don’t know a simple solution to it. It does seem to me that you’ve got a lot of organizations and individuals and media that are all doing fine. Much of the media, in my view, are, as part of their business model, catering to one political point of view. So, they’re not going to become more moderate, because that will lose them viewership. I don’t see a simple way out of the mess we’re in right now. I think that we’re just going to have to have more people come to the fore who don’t have an axe to grind and who are willing to take on the slings and arrows of their critics and speak out for reasonable policies.

On Politics, Law, and Elected Office: Jeff Bingaman, Former United States Senator from New Mexico, in Conversation with Professor Pamela S. Karlan 1
Senator Jeff Bingaman (third from right) at the presentation of a resolution by the New Mexico delegation to Sargent Petry, at the capitol in Washington, D.C. (photo by: Staff Sgt. Teddy Wade)

KARLAN Donald Trump is very fond of showing a map of the United States highlighting those counties he won. And it turns out, the closer you are to water, the more likely you are to vote for Democrats. There was also an amazing map I saw recently that showed how huge portions of the job growth and the wealth in the United States are concentrated in really only a few counties and metropolitan areas on the two coasts. Do you think the United States is moving back to a period where regions matter a lot to people?

BINGAMAN  Well, my sense is that there are not only regional factors. I think the bigger factor I see in our state, New Mexico, and in a lot of the West is the distinction between rural and urban. The rural areas have one political persuasion and urban areas have a very different one. And that’s true nationwide, though of course not entirely so. There are some large rural areas that are also not conservative.

KARLAN But not a lot of them!

BINGAMAN I think that’s right. The urban parts of the country are more liberal and more moderate in their views and they’re the areas that are growing. The reality in the West, in rural areas in the West, is that the population faces a lot of challenges—it’s not as healthy, it’s not as educated, it’s lower income, it’s older. I mean, they’ve got all sorts of problems that they’re trying to confront in these rural communities. So, part of the reality is also they’re very concerned with these challenges and resistant to change. That’s where things are.

“These efforts to pull us out of international agreements diminish our influence in the world and persuade other world leaders that they need to proceed without us….”

––Jeff Bingaman, JD ’68

KARLAN In thinking about this, people can work from a much greater range of places today. There’s telecommuting, there’s the internet, and more. Yet the brain drain seems to have accelerated over the last 20, 25 years.

BINGAMAN I agree that technology will allow you to do anything from any place, but the reality is that people seek out opportunity in urban areas and, in a general sense, that is where the opportunity is, both financial and otherwise.

KARLAN Did you struggle with this tension when you graduated from law school, about whether to stay in the Bay Area or head back to New Mexico?

BINGAMAN I didn’t struggle with it. I always planned to come back to New Mexico, and that’s what I did.

On Politics, Law, and Elected Office: Jeff Bingaman, Former United States Senator from New Mexico, in Conversation with Professor Pamela S. Karlan
Senator Jeff Bingaman (center) at the 2009 U.S. Department of Energy Solar Decathlon on the National Mall in Washington, D.C. (photo by: Stefano Paltera, U.S. Department of Energy Solar Decathlon)

KARLAN Were you pretty sure that you would go into politics? Or was it an affection for where you grew up? Or a dislike of California?

BINGAMAN No, no. I liked California very much and enjoyed my time at Stanford very much. I think part of it was that I had worked here in Santa Fe one summer after my first year of law school and enjoyed that very much, and then I had a job offer to come back to work for the New Mexico Attorney General’s Office, so that’s what I had agreed to do. I think that was the main thing. I didn’t have a clear notion what I was going to do when it came to getting into politics. I had an interest in politics from the time I was growing up here in the state. But I didn’t have a clear notion of how I could ever pursue that.

KARLAN You were the attorney general of New Mexico before you ran for the Senate. Today, attorneys general’s offices seem to be at the forefront of some real tension. There are red-state attorneys general and blue-state attorneys general and they take very different positions on the issues. Do you think those offices have changed a lot in the last 30, 35 years?

BINGAMAN I think they probably have. I think they have gotten much more into taking stands on national issues. Of course, with the current Trump administration, you’ve got the polarization that’s reflected in the Congress also reflected in the attorneys general around the country, state attorneys general. We were more focused on New Mexico-related issues than we were on national issues when I was state attorney general. Being attorney general is a great job. I recommend it to anybody because you’re essentially your own boss—at least that’s the way it’s set up in New Mexico. You can decide whom you’re going to sue and what positions you’re going to take and what you’re going to emphasize. So, it’s a great job and it’s one I enjoyed very much.

KARLAN That’s kind of the model in most states—the attorney general is elected separately from the governor and can decide whether to support the governor’s legal views or not. Do you think that’s a better model than the federal one, where the U.S. attorney general is under the control of the president?

BINGAMAN Obviously, the first loyalty of the attorney general at the federal level is to enforce the law and the Constitution, and that’s as it should be. But I think it would probably be unwise to move at the federal level to the model we’ve got at the state levels, where we have an attorney general able to pursue his or her own agenda, regardless of what the president thinks. I’ve always thought that it made sense to have an attorney general at the federal level who is appointed by the president and has some loyalty to the president.

KARLAN I’d like to talk about the policy decisions that you’re most closely tied to, starting with energy and climate. How do we get people to understand that relationship? It seems that a resistance to science is a major feature of contemporary discussions on these issues.

BINGAMAN I don’t think we have nearly the public awareness of these issues that we need to have and, frankly, Americans are substantially behind the folks in other major industrial countries in understanding the connections.

KARLAN Why are people less understanding of the connections here? Is it the media or a lack of science education?

BINGAMAN It may be a lack of science education. I do think we’ve got an unusual circumstance here where one of our major political parties has chosen to basically ignore this issue—ignore it or deny it, depending on your point of view. That’s not true in any European country that I’m aware of. I think, in most places, the need to address the problem of climate change is seen as bipartisan and nonpartisan. You can argue about the precise steps that need to be taken, and that argument does take place in Europe, Japan, and other countries. Here, it seems as though we really do have this very partisan divide on this major issue. It’s pretty unusual quite frankly.

KARLAN It seems like an odd issue to have this kind of partisan divide on, because it’s not as if the business community is unilaterally on one side of this. There were more jobs created in the solar industry last year than in the entire coal industry of the United States, but it does seem that it’s become this partisan football.

BINGAMAN Yes, I think some in the business community have been outspoken and forthright in trying to recognize this as a national issue that requires attention. Others have chosen to remain very quiet on the subject, because they realize there is a partisan divide and they don’t want to get associated with either side of that divide, because it could hurt their business interests, as they see it. I don’t know all of the reasons why. We’ve taken an issue that seems to me something that conservatives, liberals, Democrats, and Republicans all ought to agree on and made it a partisan issue. So, it’s definitely become that.

KARLAN What policies should we be adopting?

BINGAMAN We ought to be going in the direction that President Obama was trying to move the country. We ought to be adopting at the federal level, by way of legislation, cap and trade, or a carbon tax, or a clean energy standard.

KARLAN After you retired from the Senate, you came to Stanford to work at the Steyer-Taylor Center. What’s your impression of the relationship of the academy to policy? Is academia sufficiently attuned to policy considerations?

BINGAMAN I do think that universities are attuned to the policymaking process, and they’re in a very good position to provide useful input into the policymaking process. I think the problem comes down to whether the people who are in office are actually voting on policies, whether they have an adequate appreciation for the need to consult expert opinion in formulating their positions. There is a gap between what many of the folks in the university world know and what members of Congress, for example, are aware of. As I saw it, when I was in the Senate, there was a great need for people in elected office to reach out to the academic community and try to understand enough to make good decisions while in office.

KARLAN One of the things that has been surprising to me, especially after spending time at the Department of Justice, is how little lawyers are trained to understand the policy-making process within Congress. There’s a proposal to start a Capitol Hill clerkship equivalent to judicial clerkships so that young lawyers can gain experience in legislative work and perhaps understand how things work—the reconciliation process, hearings, etc. Is this important?

BINGAMAN The kind of internship that you’re talking about would be very useful for both the young lawyer but also for the people working in Congress, and it would likewise be useful to members of Congress. These members and their staffers could get some excellent input and help from very capable people. We had a lot of fellows and interns in our office when I was in the Senate, and we got a lot of very good work out of them, so I think it’s a great thing. I think law schools can and should try to make law students aware of some of the complexity involved in formulating and enacting major legislation. There’s a lot of complexity involved in that and I think just having an appreciation of that fact and understanding it is a useful thing for people to have when they get out of law school.

KARLAN President Obama was noted for his multilateral engagements with other countries. Probably the biggest example of course was the Paris Climate Accord, which we’ve now pulled out of. Will this flip-flopping cause us major problems, perhaps lessen our position in the world?

BINGAMAN  These efforts to pull us out of international agreements diminish our influence in the world and persuade other world leaders that they need to proceed without us and they can do fine by doing that. It’s contrary to my perception of what we ought to be doing and the long-term best interests of our country. I think, for example, climate change is a global problem and the only way we’re going to find solutions to it is to work with other countries that are emitting enormous amounts of greenhouse gases. To the extent that we pull out of the agreements, and dismantle our own efforts to reduce greenhouse gas emissions, it sends a very bad signal to the rest of the world and lessens the chance that the community of nations, such as it is, will confront the problem effectively.

KARLAN The Trump administration is more isolationist than most modern presidential administrations, with the country pulling out of key international agreements, questions about our support of NATO, etc. Is this a sign of things to come?

BINGAMAN  Well, I don’t think it’s a sign of things to come. I think most Americans still support the traditional role, the important role that the United States has played in world affairs. Dealing with climate change is one example, but there are a lot of other areas you could point to. So, I don’t think we have passed an inflection point, which means that our influence in the world will continue to diminish from now on, or for the rest of this century. But I think we are in a period now where we are shooting ourselves in the foot in that we are taking actions at the national level that do have the effect of diminishing our influence.

KARLAN Some policy choices seem to be reversible and others don’t. I know that some people concerned with climate change worry that if policy changes aren’t made now, you can’t really go back and undo climate change later. On some of the domestic front—on solar energy and wind energy and the like—it doesn’t seem like we’ve retreated dramatically yet. Where do you think we are on alternative energy sources?

BINGAMAN  The major factors that will determine what happens in these areas are economics and technology development. Public policies can accelerate these trends, or decelerate these trends, and I think that we’ve had in place some energy-related policies that have helped accelerate our transition to a clean energy economy. Those policies are being rolled back and are in danger of being repealed, so our transition will be that much slower. One real factor is that the rest of the world is continuing to pursue similar policies and doing so quite aggressively. So, the technology development is occurring, the economics are improving, and the underlying facts that should bring about this transition are happening; it’s just that the policies in our own country are now somewhat in reverse.

KARLAN Another contentious issue is immigration. You come from a border state. It’s also a state with an extraordinarily diverse population. I think it probably has the highest number of residents who have Hispanic heritage. Where do you think we are on immigration?

BINGAMAN  Congress has been trying for 16 years or so to enact some kind of new immigration law, and it was a result of the inability of Congress to do so that President Obama went ahead and adopted DACA as an administrative matter, as an executive order. So, my own view is that it’s just a very hard issue to get people in Congress to reason together on. We passed a bill in the Senate back when Ted Kennedy and John McCain were working together—the McCain/Kennedy bill—that was major immigration reform. I think it was decent legislation and should’ve been enacted, but we couldn’t pass it through the House. It’s hard to see how this president is going to get the Congress to come together around significant immigration reform legislation. He doesn’t have any proposal out there. Just calling on the Congress to get it done in the next six months isn’t adequate, in my opinion.

KARLAN This administration doesn’t seem to be making its own legislative proposals.

BINGAMAN  I’m not sure it’s a lack of desire to make specific proposals, though I’m sure that’s part of it. I think it’s a lack of capacity to make serious proposals. You’ve got to have competent, expert help in order to put together a competent, serious proposal on immigration reform, or health care reform, or any of these other issues, and I don’t see that capacity or capability within the current administration. It maybe there but, so far, it’s very well hidden.

KARLAN Bob Mueller’s investigation is proceeding and several members of the Trump campaign have been indicted. I wonder what you think the investigative roles of congressional committees ought to be and whether they are carrying that out effectively?

BINGAMAN I think you do have a credible effort going on to look into the connections between the Trump campaign and the Russians, and that’s a good thing. I think Bob Mueller’s appointment and his investigation are also good. I think the two together should eventually give us facts about the extent of this activity and how much effect it had. I think that’s good. I’m sure there are many other areas that need attention, or will need attention over the coming months, and whether or not a Republican-controlled Congress is going to use its authority to investigate those other areas, I don’t know. I’m doubtful about that.

“The major factors that will determine what happens in these areas are economics and technology development. Public policies can accelerate these trends, or decelerate these trends, and I think that we’ve had in place some energy-related policies that have helped accelerate our transition to a clean energy economy.”

––Jeff Bingaman, JD ’68

KARLAN Suppose we do find out that the Trump campaign had various dealings with the Russians. Is that an impeachable offense, and can a president be impeached and convicted and removed from office for it?

BINGAMAN Well, I sat through the impeachment effort and the trial regarding President Clinton and became convinced at that time that high crimes and misdemeanors is a high bar and you’ve got a high bar to jump in order to prove that a president committed a high crime and misdemeanor, as contemplated by the Founders. I think that’s still the case. Obviously, if something outrageous and illegal surfaces as part of one of the ongoing investigations, then that may change things very dramatically but, absent that, the people of the country chose Donald J. Trump as president and we’re going to have him as president for four years. That’s my perception.

KARLAN The feature story in this issue of the magazine looks at lawyers running for elected office, something you know quite a bit about. How do you think campaigning has changed since you retired?

BINGAMAN I do think it’s changed dramatically and I’m sure I’m not aware of all the different ways it has changed, since I haven’t run in several years. But I think one major change is that you now have very large sums of money at the national level to flood into a state and oppose a particular candidate. I don’t think that was happening when I first got into politics. I don’t think you had billionaires and national PACs that were taking particular people and making it their business to try to defeat them at the next election.

KARLAN Is it a threat to democracy?

BINGAMAN I think that getting an informed public to make an informed decision about their representation in government becomes more and more difficult as you have these enormous amounts of money available to put into media. So, I think it undermines democracy—the way I think about democracy.

KARLAN Before we finish, I wonder—what do you think were your greatest accomplishments in the Senate?

BINGAMAN We passed some important energy legislation, I think, in the 2005 and 2007 bills. I felt some satisfaction in the work I did with the Affordable Care Act. I was very involved with that and with both Senate committees that had jurisdiction of the Affordable Care Act. Then, we passed some major public land legislation, which I was very glad about. So, those were the three areas where I felt I made some contribution.

KARLAN I imagine it would be hard to do that today.

BINGAMAN Well, it would be difficult to get much done there, I think. I watch what’s going on and I don’t see a whole lot that I could be accomplishing that others can’t also accomplish at this point.

KARLAN Thank you very much for spending time with us.

BINGAMAN Thank you.