Sunday, June 24, 2007

A Response to Heather Gerken on Election Law Reform

Guest Blogger

Bruce Ackerman

I think Heather Gerken is on to something important in her recent reflections on “Here to There” -- something that goes well beyond election law and enlightens the general predicament of progressive legal scholarship today. Quite simply, we’ve lost the federal courts for a decade, and maybe longer, so who precisely is our audience?

Presidents and governors, Congresses and legislatures, and agencies and NGOs-- ­ when progressives manage to gain the upper hand. And, more broadly, ordinary citizens.

But to make sense to these audiences, we must better understand their distinctive interests and modes of understanding. Whatever you might think of federal judges, our new audience definitely doesn’t aspire to rival Dworkin's Hercules, but they are ­ -- pace public choicers-- ­ often interested in the public good. To be sure, professional politicians will turn away if policy prescriptions are plainly inconsistent with their interest in reelection, but there are lots of reforms that are in the grey zone where the merits matter. And, of course, Gerken is right to insist that politicians pay a lot more attention if a policy initiative can somehow penetrate the fog that surrounds their constituents, who generally don't have much of a clue about what’s going on.

So what’s a poor legal-policy wonk to do? How is he going to grab the attention, of his new audiences?

This is a general problem-- ­ ask any tax lawyer or environmental lawyer or intellectual property guru. To be sure, a politician won’t back an election law proposal if it is plainly to his political disadvantage, but this is also true of reform proposals on global warming or tax reform. Indeed, there are more powerful defenders of the status quo in these areas than there are when dealing with election reforms. For example, heavy hitters like Exxon or General Motors won't find anything to dislike in the sensible reforms of the primary system proposed by the Baker-Carter Commission. These proposals will encounter far less opposition than the next big initiative on global warming. And yet, with or without Al Gore, we shall overcome their resistance in the next few years!

And while most citizens don’t have much of a clue about any policy, election reform actually resonates with the general public more than many other issues: Who is the John McCain of tax law in our generation? Nobody.

The big problem with McCain-Feingold is that it clings to an old-fashioned command-and-control model, ­ as do many campaign reform scholars. In contrast, progressives in other areas have successfully made the transition to more market-style forms of regulation: When the time comes for the control of green-house gases, the politicians will adopt a market-style cap-and-trade system. Perhaps the next generation of campaign reformers will make a comparable shift to the patriot dollar scheme advanced in Voting with Dollars?

Which isn’t to say that election reform is a piece of cake, but that it isn’t all that special. This means that different specialists have a lot to teach and learn from one another. Consider one of Heather’s good ideas: her Democracy Index. Transparency International has made a big splash over the last decade with a comparable index: ­ their annual Corruption Index ranks most of the countries in the world, and has had a substantial political impact ­ but I don’t know precisely what it has been, and why. But surely this, and similar cross-border raids, will add up to increasing insight over the middle run?


"Presidents and governors, Congresses and legislatures, and agencies and NGOs ­ when progressives manage to gain the upper hand."

Perhaps they all do, perhaps they don't. But, do what? You want to edit that sentence to add a verb?

"The big problem with McCain-Feingold is that it clings to an old-fashioned command-and-control model ­ as do many campaign reform scholars."

Ah, no, the big problem with McCain/Feingold is that it stomps with hobnailed boots on the five most beautiful words in the English language, "Congress shall make no law...". And in the process does not so much fall prey to, as passionately embrace, the conflict of interest inherent in incumbant office holders regulating the speech of those who'd unseat them.

I like the idea of taxing large donations to pay for public funding. Campaign spending is a positional good--it has only relative, and not absolute value. I say a bit more on this idea here:

The David Gamage proposal below seems to me ideally designed to address positional concerns:


Do you think $100 and lower political contributions should be taxed?

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