an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Setting the Agenda for Scholarship on Election Reform
Heather K. Gerken
Part I: The "Just Add Water" Problem
About a month ago, I posted about what I called the "here to there" problem in the field of election law. The problem is that we spend a great deal of time thinking about what an ideal election system ought to look like, but almost no time figuring out how to get from here to there: how reform actually takes root. Although we purport to study the political process, remarkably little scholarship is devoted to remedying the crucial problem within election law -- it is extraordinarily difficult for reform proposals to get traction in this country. We thus rarely write about the type of institutional fixes and wedge strategies that would help reform proposals (of whatever sort) get adopted. The dearth of scholarship on these topics is particularly interesting given that election law scholars tend to eschew pie-in-the-sky reform and pride themselves on their pragmatism.
The problem is not confined to the academy. Blue ribbon panels and good governance groups often issue grand pronouncements that we should, for instance, overhaul campaign finance or have a nonpartisan system for administering our elections. Though reformers are well aware that we cannot "just add water" and get reform passed, they spend a good deal of time describing the end goal of reform and not enough time thinking about the "here to there" question.
Take a look at the final report of the Carter-Baker Commission. It offers pages of detailed recommendations about how we could better administer our election system. Yet there is virtually nothing in the report that talks about what we could do to help ensure that at least some of these recommendations see the light of day. While it is obviously helpful for luminaries to endorse particular reforms, one wonders why so much energy is devoted to identifying the journey's end and so little devoted to figuring out how to smooth the road along the way.
Although reformers are more aware than anyone of how difficult it is to get reform passed, they may be least equipped to address the "here to there" problem. First, reformers are beholden to funders. And funders tend to favor big over small, end goals over interim solutions, silver bullets over wedge strategies, substantive proposals over procedural fixes. As one of my friends put it, "process is not sexy." Second, the reformer's job is to lobby elected officials. It is one thing to have a conversation with elected officials about the end goals of reform. It is another to have a conversation about what, precisely, prevents us from reaching those goals. The foremost obstacle to reform is self-interested politicians. That is an awkward subject to raise with people on whose good will your work depends. Finally, while reformers spend lots of time thinking about the "here to there" problem at what Justin Levitt of the Brennan Center calls the "micro-level" (the tactics required to build support for a particular policy proposal), they lack the resources to think systematically about the "here to there" problem at the macro-level.
It is unfortunate that neither academics nor reformers think enough about the "here to there" problem because the issue is of great practical significance. Our election system is in a shambles, and there seems little hope that we'll see serious change anytime soon. Until we think systematically about why that is so -- and what can be done to change this dynamic -- there is little chance of reform taking root. (I suppose one might hope that things will get bad enough that reform will become inevitable, but if the 2000 election did not do the trick, it is hard to see what kind of crisis would suffice).
Rather than continuing with the same tactics in the vague hope that something will take, we need to change the institutional terrain on which reform battles are fought. The kinds of institutional correctives and wedge strategies I have in mind may seem modest when compared to typical reform proposals, like calls to rewrite our campaign finance system or demands for a nonpartisan districting system. But these wide-ranging reform proposals have been met with a deafening silence from voters and politicians. We have plenty of ideas about what kind of reform we want. The top of our agenda ought to be creating an environment that is more receptive to those ideas. That's where there is a great deal of work to be done.
The "here to there" question is not only practically salient; it is also of genuine intellectual interest. It implicates many of the same kinds of policy, legal, and institutional questions embedded in the field's other specialties (campaign finance, redistricting, direct democracy, the regulation of political parties). It raises a set of questions that run across the field (the reasons it is hard to reform the campaign finance system are similar to the reasons it is hard to get nonpartisan districting). And there is plainly a gap in the literature. A handful of scholars -- particularly those in the field’s "second generation" -- have written sporadically about some of the issues implicated by the "here to there" question. Several of my recent pieces (here, here, here, and here) are devoted to these questions, and I think that a few articles by scholars like Chris Elmendorf, Michael Kang, and Dan Tokaji could fairly be grouped under this rubric. But unlike campaign finance or direct democracy scholars, we do not think of ourselves as sharing a specialty and thus have not yet thought systematically about what connects our work to each other's or to the broader project of election reform.
During the next few days, I will try to make the case that academics and reformers ought to spend more time thinking about the "here to there" in election reform. I will suggest that we ought to think systematically about the central obstacles to reform and how to deal with them. I'll propose developing a new specialty in election law -- the electoral reform process -- in the hope that academics will someday be as likely to claim it as a specialty as they are to assert expertise in campaign finance, redistricting, or any of election law's other subfields. And I will offer an initial sketch of what this new line of analysis might look like. Tomorrow I will talk about the central obstacle to reform -- the fact that self-interested politicians run the election system. Academics commonly refer to this problem as "the foxes guarding the henhouse," and I'll offer a few suggestions as to how we might domesticate the foxes. Posted
by Heather K. Gerken [link]
Heather, I sincerely look forward to your upcoming posts.
If I have had any major objection to the reforms (not only in terms of the election system, but also the broader problem of constitutional reform) that have been periodically proposed on this site, it has been that the "here to there" problem is largely ignored. It suffices to say, perhaps, that one would need a constitutional convention, but arguing the necessity of such a convention and developing a strategy to bring it into fruition are two different processes.
For this reason, I'm very happy to read this post, and hope that it does indeed encourage the sort of grounded, tactical proposals (like the Democracy Index) that provide practical approaches to specific problems. They may not culminate in the utopian's preferred model, but at least they begin progress towards those ideals.
Bravo! I think this is going to be extremely valuable.
If there needs to be an academic subdiscipline to study the how-to-get-there-from-here of election administration and/or governance reform, it might be a better fit in political science departments than in law schools. Or is that statement a heresy that will get me banned from Balkinization for life?
Reforming election administration is, to me, different from reforming governance. The partisanship of officials, security/integrity, and vote suppression (both deliberate and careless), are examples of the former. Public financing of campaigns and electoral reform (IRV, Electoral College) are examples of the latter. Perhaps redistricting includes elements of both.
I wonder whether the how-to-get-there differs accordingly. The Citizens' Assembly model (which I support enthusiastically) clearly applies to governance reform. The "democracy index" wedge (which I have reservations about) clearly applies to administration.
I eagerly await the future installments, and thank Prof. Gerken in advance for posting them.
I share the enthusiasm for Heather's posts, but, as someone inclined to be less temperate than she is, I'm also tempted to say that "immoderates" also serve a function, ultimately by raising the specter of untoward events should reform not take place. Proposal of the Seventeenth Amendment, for example, was considerably aided by the specter of state's calling for a constitutional convention should Senate mossbacks not realize that the day of legislative selection of senators was past.
The Fair Vote initiate, by which the larger states are trying to derail the electoral college, is also extremely valuable, though I in fact am not a fan of the specific proposal, which simply maintais the first-past-the-post structure of our electoral system. Far better, I think, either the alternative transferrable vote of the French two-stage election. But if more states pass the Fair Vote proposal, I suspect that even Congress may start paying some attention.
I am curious, though, whether Heather regards Fair Vote as within her "here to there" camp.
"Here to There": First step, it seems to me, is raise consciousness that these "self-interested politicians" have extraordinarily high levels of conflicts of interest, enough to easily result in disqualification in other contexts, by virtue of the fact that the vote on the circumstances of THEIR OWN RE-ELECTIONS. Case In point: Due to amendments in the House Administration Committee on May 8, 2007, HR 811 now contains, for the first time, legislative authorization/recognition of trade secret vote counting software and legally mandates nondisclosure agreements for those who view source code that counts the public's votes. In direct effect, the House and Senate would be legislatively ratifying what has previously been only contractual: secret vote counting on electronic machines, and by doing so effectively claiming that we the people want to hide the vote counting FROM OURSELVES, not deeming it in our interests to have any chance of being apprised as to whether the counting was proper or not. This is hardly the position of the public, which in an August 2006 Zogby poll indicated support of 92% for OBSERVABLE vote counting systems over their alternatives.
How to stop Congress from legislating that their own re-elections be counted in secret backrooms of electronics? We can start with pointing a spotlight at the conflict of interest here which to varying degrees is present whenever all incumbents (and by definition no challengers) vote on the means by which they will be challenged in the next election.