Balkinization  

Tuesday, June 19, 2007

Setting the Agenda, Part III

Heather K. Gerken

Setting the Agenda for Scholarship on Election Reform
Part III: Providing Citizens Better Cues

This is the third part of a series arguing that academics and reformers ought to think harder about the "here to there" problem in the field of election law. Because it is so difficult to get election reform passed in this country, we should think harder about how to change the institutional terrain on which reform battles are fought in the hope of creating a more receptive environment for reform generally. Yesterday I talked about one of the central problems in electoral reform: the foxes are guarding the henhouse. Our system is run by partisan politicians, and they are reluctant to relinquish their power to set the rules by which they are elected. I also proposed a solution that problem: domesticating the foxes. Rather than ask politicians to act contrary to their self-interest, as academics and reformers typically do, we should imagine ways to align the interests of politicians with those of voters. The "here to there" solution is thus to harness partisan self-interest, one of the great engines of our democracy, in the service of reform.

Today I will focus on the flip side of the coin: the fact that election reform proposals get almost no traction with voters. We might not worry too much about partisan self-interest if voters were willing to put pressure on their representatives to do the right thing. But for a variety of reasons -- reform debates are too complex, too abstract, too distanced from substantive politics -- citizens rarely seem to care about election reform. If we want to change the terrain on which reform battles are fought, we must think systematically about how to get citizens more engaged.

One reason that citizens have a hard time getting behind election reform is that the issues are extremely complex. Substantive political questions, of course, are also quite complex. But here voters often have access to heuristics or cues provided by political elites to help guide their decisions (a union member, for instance, might trust a labor proposal backed by Democrats). Unfortunately, in the reform context, it is political elites -- those best able to provide useful cues -- who tend to oppose reform of any type; they hate to mess with the system that got them elected.

Consider, for instance, recent efforts to pass redistricting reform by initiative in California and Ohio. Reformers often look to the initiative process as a strategy for bypassing self-interested legislators and getting reform through. There was every reason to think this strategy would succeed in California and Ohio. After all, a majority of Republicans and Democrats agreed that legislators should not draw their own districts. Yet both proposals were defeated by substantial margins.

Part of the problem (as I have written here, here, and along with Chris Elmendorf here) were the cues available to voters at the time. Voters trying to sort through the merits of the proposal had lots of information about who was backing each one: in California, the most prominent backer was the (then-unpopular) Republican governor, Arnold Schwarzenegger; in Ohio, the proposal was backed by a coalition of Democrats and unions. Perhaps unsurprisingly, California (with a strong Democratic majority) and Ohio (with a strong Republican majority) were unwilling to back the reform. A recent study suggests that the same holds true historically

The problem is obvious. The use of partisan cues is often a perfectly sensible strategy for citizens voting on complex substantive questions. But when it comes to election reform, relying on partisan cues means relying on self-interested legislators, who are likely to resist virtually any change to the status quo. Even citizens who don't trust legislators have a problem, as it is hard to know whom else to trust. The question, then, is how to provide voters better cues when they are voting on election reform.

Chris Elmendorf has done wonderful work on how we might introduce new, better cues for citizens into the reform process. Elmendorf argues that, contrary to the conventional wisdom among reformers, we do not need to create fully independent commissions with plenary authority over election administration in order to improve the health of our democracy. Instead, he shows that advisory commissions with the power to propose legislation -- like those that exist in Australia, Canada, and England -- can be quite effective in pushing reform through the process despite their lack of formal lawmaking authority. Not only can advisory commissions put issues on the public agenda but, if run properly, they can provide what Elmendorf terms an "integrity cue" to voters. Put simply, advisory commissions can serve as something akin to a "Good Housekeeping Seal of Approval" for voters as they sort through the difficult policy questions involved in electoral reform. And, of course, if the public comes to trust the advisory commission, politicians suddenly have an incentive to vie for its blessings and do the right thing.

Another intriguing strategy for realigning the interests of politicians and voters is citizen commissions. One potential problem with the typical advisory commission, which is composed of experts and nonpartisan elites, is that it is vulnerable to at least two types of challenges from disgruntled politicians trying to stymie reform: (1) that a commission composed of experts is undemocratic; and (2) that commission members are not really neutral. Indeed, these were precisely the grounds on which the reform proposals in California and Ohio were attacked.

Citizen commissions are virtually immune to such attacks. Who, after all, is going to claim that a randomly chosen body of voters is undemocratic or that everyday citizens have a partisan axe to grind? Consider one concrete example of how the creation of an advisory citizens' commission can change the reform dynamic, described in one of the papers linked above. When a "Citizens' Assembly" was created to propose electoral reform in British Columbia, the two major parties opposed the proposal but were afraid to speak out against the Assembly. The best they could do was maintain a virtual radio silence on the subject. A citizens' advisory commission not only provides a helpful cue to voters, but can introduce a new dynamic into reform debates by elites.

* * *
Here, then, is another set of questions for those academics and reformers interested in the "here to there" question. Election reform is a complex topic. If we want to improve the institutional terrain on which reform battles are fought, one way to do it is to think more systematically about the ways in which we can provide citizens better and more trustworthy cues to help them sort through these debates.

Comments:

There is a dynamic you have left out (at least, so far)--a first mover problem. No state whose population tends to identify, on the national level, with a certain party will want to unilaterally disarm and give votes to the other party.

Take a state that is majority Democrat, like California. If I were a Californian (I am now, but was not then, but nevermind) and a Democrat, would I have wanted the reform proposal the Governor put forward? I know that the effect of this would probably be to increase Republican representation in the U.S. House (since California's legislature is Democratic, I presume they have been gerrymandering in favor of Democrats). I know, however, that other sites of notorious gerrymandering in favor of Republicans--whether Texas or Pennsylvania--will not be doing likewise. We have a prisoner's dilemma here. Thus, even if my commitment to election reform were stronger than my commitment to party, or to other ideological goals that my party can advance, I would still choose no reform. I would not agree to this proposal, even if I were willing to agree to a national anti-gerrymandering proposal that nonetheless cost my side votes. Indeed, doing so unilaterally actually makes the national government more undemocratic, since at least now Democratic gerrymandering in California offsets Republican gerrymandering in Ohio. If Californians stop gerrymandering, but Republicans in Ohio continue to do so,

One wonders if California and Ohio had teamed up, what they could have accomplished. California has been largely Democratic the last few elections; Ohio, while not as Republican as CA is Democratic, was nonetheless considerably more red up until recently. Perhaps each could have made their proposal take effect only upon the other's adoption of reform.

The FairVote recognizes this problem. There is no way Colorado is going to abandon the winner-take-all-electors system unilaterally, for it would mean no candidate would waste a dime there ever again. California would not, simply because it would mean a massive number of electors going to Republicans; Texas likewise to Democrats (30% of Texans would still yield 10 electors, easily enough to have made the difference in 2000). The FairVote takes effect only after enough states are on board for it to achieve its goals.

I wonder the degree to which even a citizens' commission would be subject to these temptations. A random sampling of Californians would still come up with a majority of Democrats.

Obviously, this only has to do with national politics--the effect is weaker within a state. Nonetheless, this is one of the biggest here-to-there obstacles that I foresee: a problem not merely of politicians self-interest, but of politically minded voters in our federal system.
 

Who, after all, is going to claim that a randomly chosen body of voters is undemocratic or that everyday citizens have a partisan axe to grind?

Not me -- but then, unless this is literally some kind of jury selection system, will this really be a "randomly chosen body of voters"? Surely there will either be some kind of self selection for "reform activists", some kind of "friends of Governor X" history, or most likely both. Nothing terribly wrong with that, but I think it wouldn't be quite as immune to political sniping as you suggest. Or do you actually have a random, jury-like process in mind here?

Don't mean to nitpick, but I think this needs some clarification.
 

Re FairVote, actually the same "unilateral disarmament" arguments apply, they're just made less obvious .

If Californians suspect Ohioans or Wyomingans(?) are running strong voter suppression or election machine fraud systems, they might reconsider throwing their electoral college votes away on the bonfire of a national popular vote system that is, overall, less fair than their own. NPV/FairVote/whatever depends crucially, I think, on federalized, vigorously enforced voter registration and election procedures, but this doesn't seem to be acknowledged by its proponents.

Personally, I rather like the electoral college per se, it's just badly apportioned; a simple tweak (removing the 2 senatorial electors per state) would be an adequate reform. Yes, that would take an amendment and probably a miracle; but so should NPV's corollary requirements, properly understood.
 

Taking up the Dr. Gerken's "here to there" idea, though, and in an effort to be positive about the National Popular Vote/FairVote scheme: maybe NPV would be a catalyst for anti-vote suppression legislation and uniform voter registration procedures (or vice versa).

HR 811 (HAVA reform: audited elections, no black box voting machines) may be the other part of the puzzle, in that it acknowledges the need for a uniform federal election process.
 

[One] problem is that the election system quickly dissolves into a prisoner’s dilemma for voters. As voters cannot really determine the true impact of any particular legislator’s corruption on their job performance, they will systematically undervalue the possibility of a candidate being corrupt unless they can find some other signal within the candidate’s campaign donations that can separate corrupt candidates from non-corrupt ones. . . . [S]uch a signal cannot generally be gleamed from the campaign finance disclosures. Thus, other attributes of the candidate, which make better-funded candidates more attractive to voters than lesser-funded candidates almost entirely irrespective of whether the candidate is corrupt, dominate the voter’s decision-making process. Since a candidate’s openness to corruption increases their ability to obtain campaign funds, the result is that the candidates themselves are systematically encouraged to permit corrupt quid pro quo donations. As a result, legislators, even though they would prefer to be free of corruption, are thus required to act corruptly in order to maintain office. . . .

Taking this further, for each individual lawmaker, voters cannot accurately grasp what each donor’s contribution received for their vote, nor the cost to them of that decision. They may know that a candidate who receives large sums of campaign contributions year after year is more likely to result in overall corruption, but unless the candidate can show that these donations came from such small amounts that it would be impossible for the legislator to show that the donors received nothing for their contributions. Furthermore, the information costs of trying to figure out which donors are more likely to result in corrupt behavior is too high to become an effective source of information for the voter. Without actually understanding the real effect of corruption on the legislative process, the result is that voters simply have normative

Without actually understanding the real effect of corruption on the legislative process, the result is that voters simply have normative views of contributors based on preset political preferences. As Strauss argues, “[b]oth [civil rights groups and the agricultural lobby] are well organized groups. Both purport to be concerned with the good of society and to be trying to implement a vision of social justice, not just promoting their own selfish interest.”
 

Looking at the expertise experienced gerrymanderers exercise, compared to the naivete mere citizens are likely to exhibit, is to contemplate the same difficult chasm between status quo and future egalitarianism in voting.

In CA the dynamic was far from the characterization of unpopularity of Schwarzenegger. The initiative which placed the redistricting measure on the 2005 special election ballot was largely fueled by two sources, both out of state: the measure was funded in part by Schwarzenegger fundraising conducted among wealthies in places such as TX and WADC; and the measure was cookiecutter from the Republican Party strategy book which is based upon expert analysis of how to game the initiative systems in states with robust feedback loops in intrastate politics.

In CA in 2005, further, the legislature was so worried about the initiative's duplicitous advertising that the lawmakers began to offer compromise to the governor, suggesting a majority party weighting formula as an overlay upon the Republican National Party template for balancing CA elections by handing to retirees from the bench the responsibility for studying and redrawing district boundaries. In CA this empirically meant the pool of candidates for the redistricting commission consisted mostly of Republican elderly men, as CA has a penchant for having Republicans as governor, although often the legislature is Democratic Party led; so the retirees appointed predominantly would be judges appointed by people like Ron Reagan, George Deukmejian, Pete Wilson, Arnold Schwarzenegger.

At present the same Democratic Party leaders in-state who offered that sop to Schwarzenegger are engaged in placing a next generation version of that compromise on the next ballot in 2008.

I tend to back the stridency of the political process, and like the fact incumbents can rule on how much money they can fundraise and the way their cloackroom deals map their political futures' mutual security.

One of the problems with intransigence in this matter, though, is its fostering of a pretty much one party system of government; it is a partisanism which draws its bounds, however, at the most controversial issues; for example, when a president's administration steps over the traditional line of keeping political plum appointments strategies separate from key institutional positions and departments where the civil service bureaucracy has functioned best when kept as apolitical as possible.

In sum, we will vote when we see the risk the status quo's upset will usher in something more abusive. I certainly want expertise on a citizen redistricting committee, not some trial by peers voir dire approach to keeping informed and involved persons from membership in such a body. My view is leadership of character is the great apotheosis in the political process; a state which elects an elections official with great insight and drive, as CA did in 2006 in electing then state senator D.Bowen as Secretary of State to oversee elections policies, gives itself the best chance to develop foolproof elections systems, and to diminish the influence of subterfuging plotters and simple charlatans who would subvert elections processes for personal or organizational ends.

Guarantee my vote will be counted, and that the canvassing software is honest, the results auditable; bring the most eloquent and informed advocates into the public forum and provide ample documentation including online links, so I may become educated in issues which apply to all of us. From this beginning come yet more candidates of character.

I think it is possible to address this topic looking at either CA or OH, and without rehashing the OH2006 election, or the fates of some of the principals who assured its outcomes, or the postmortems in print and online which describe the raw politics that was practiced in that election in OH. We have yet to witness a complete rollout of the corrupting effects of the US attorney purges which played out in elections across the US, and clearly those purges were part of an election law savvy strategy; what's worse, the bosses who designed the strategy continue to work in high office. It will be nice to work on these matters in legislatures; and academia needs to develop the intellectual tools to serve the process. I definitely do not support the idea of blue ribbon commissions having the functional equivalency of elected representatives. A vote is a vote and the news is what people talk about a lot. We can accomplish much locally in vote related matters; let the federal government take its cues from what develops in the states. I would be interested in hearing what other observers have to say about the depictions here, of national political strategies having local components. And I wonder who has found a transcript of FEC appointed commissioner von Spakovsky's nomination hearing last week online, though I know video is available, if one has a certain manufacturer's software on one's workstation. We need to be cognizant that the president is nominating to key posts individuals who made a reputation for politicizing voting as a substitute for now illegal processes, and that the DoJ has obliterated most of the apolitical experts from its reviewing section responsible for overseeing vote disputes. There are institutional barriers right now to introducing more fairness into voting law. I look forward to this series' next installment.
 

Thomas Nephew: Unless this is literally some kind of jury selection system, will this really be a "randomly chosen body of voters"?

One tested and proven mechanism is spelled out in some detail here. In brief, citizens selected at random from from the voter registration list could opt out, either for lack of time or lack of interest, but no one could opt in.

There are two major limitations on the citizens commission idea.

First, if it's conclusions are to have maximum legitimacy, the commission needs to be established the government rather than by (for example) the League of Women Voters or Common Cause. This requires that the foxes themselves think it's at least OK. A proposal similar to the British Columbia Citizens' Assembly was introduced in the California Legislature in 2006. Leaders of the majority party didn't even assign it to a committee for a hearing.

Second, citizens selected in this way prove -- again, this is now demonstrated in practice -- to be both interested in and good students of some pretty complicated subject matter. But they are entirely at the mercy of their teachers, i.e. the "expert" consultants who are hired to develop materials, design presentations, and generally shape the dialogue.

In spite of that, I find the Citizens Assembly idea very, very exciting. But I'm prejudiced. Both of the CA's to date (British Columbia and Ontario) decided in favor of proportional representation, which is what I work on.
 

I take issue with a couple of the assertions and assumptions in these posts. The notion that the supposed abstraction of reform proposals causes voters to lack interest strikes me as undeveloped and it also cries out for empirical support. In some respects the conjecture may be downright backwards. It may be that the lack of interest in voting reform is merely a reflection of a general lack of interest in voting in this country -- which may in turn be a product of winner take all elections rather than consensus. More fundamentally, voting reform proposals have often tended to suggest very concrete outcomes -- e.g., enfranchising more potential democrats voters. Insofar as this is the case, one might commend the voting public for having a certain amount of suspicion of both politician and academic reformers. If reformers want their proposals to have more traction they should be able to articulate how their proposals address basic issues of fairness. Reformers always face a kind of Rawlsian legitimacy problem if they cannot articulate why they would want to be part of a revised political system without knowing what the outcome would be from reform.

It is also easy to overstate the consensus on the need for reforms -- particularly with districting. The often accurate popular image of back room deals in smoky rooms makes alternative redistricting practices seem desirable. However, the risks for minority voters of having no representation whatsoever from many proposed reforms is high. To speak the concrete language of a redistricter, it is because districts are often drawn from census blocks rather than tracts that many minority legislators have seats. Bizarrely shaped districts are representative districts, and if this is not the case we need to be able to explain why not. If the only thing that mattered was the median voter then we need not have districts at all, but at large districts, at least within the confines of the two party system, destroy minority voting strength. In sum, gerrymandering is not simply a matter of partisanship, it is a matter of one's vision of democratic representation.

Of course, reforms that enhance the individual's access to the vote (apart from issues of dilution) should happen sooner rather than later. I take this to be the focus of the Democracy Index. (Insofar as it is not, there is a real risk that theories of democracy will masquerade as objective data.) Voting, however, is collective action. It would really be a shame if scholars lost the big picture out of mere impatience.
 

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