Balkinization  

Wednesday, June 20, 2007

Setting the Agenda, Part IV

Heather K. Gerken

Setting the Agenda for Scholarship on Election Reform
Part IV: Creating a Virtuous Cycle through Shaming

This is the fourth part of a series arguing that academics and reformers ought to focus on 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. The goal of the series is to draw attention to the practical problem and sketch what a new academic specialty devoted to these questions might look like. On Monday I talked about the ways we might harness partisan self-interest in the service of reform. Yesterday I talked about the need to provide citizens better cues to ensure that reform debates get traction among the electorate.

These strategies, of course, overlap substantially and are mutually reinforcing. If partisan self-interest is redirected toward reform, political entrepreneurs have an incentive to find new ways to organize and draw citizens into reform debates. If citizens become more engaged in reform debates, political elites will have more incentive to care about reform. The hope is that at some point a virtuous cycle will begin.

Today I want to talk about another set of strategies for generating a virtuous reform cycle: shaming. By "shaming," I mean creating a real-world example of what an election institution ought to look like in order to shame elected officials elsewhere into doing the right thing. Shaming strategies affect both the citizen and the elite side of reform debates. First, the existence of a real-world alternative provides a useful cue for citizens by showing them what their elected representatives ought to be doing. And shaming strategies can change reform debate among elites, preventing them from pretending that a proposed reform won't work (this is the conventional response to any reform proposal and quite difficult to defeat in the abstract). Let me describe two shaming strategies, both of which have just been proposed for a conference that I am organizing on the "here to there" question for the Tobin Project's Institutions of Democracy Working Group.

The first is a proposal by Ned Foley of Ohio State's Moritz College of Law. Foley's view is that states should set up specialized courts for adjudicating election disputes. In thinking about the "here to there" question for the conference, however, he realized that it would be difficult to get such a proposal put in place. He then began to ask himself how we could get what he terms "reform without legislation." His answer? Creating "shadow courts" to issue decisions in election disputes and submit those decisions to existing courts in the form of amicus briefs.

Foley's idea, inspired in part by the www.factcheck.org site set up by the Annenberg Public Policy Center, could influence post-election adjudication in two useful ways. First, we would expect existing judges to pay a good deal of attention to what a bipartisan group of experts had to say about the cases before them. Election law can be a fiendishly complex subject, and judges are often grateful for a helping hand. Second, the mere existence of the shadow courts could create a terrain that is more receptive to reform. As Foley writes, "if and when an actual court deviates from an amicus opinion of the shadow court – and the actual court's decision appears to be motivated by mere partisanship – this deviation might generate some momentum" for the creation of the type of specialized courts that Foley believes we need. By modeling how a well-functioning court should function, Foley suggests, the shadow court increases the likelihood that this reform will actually take root.

Richard Pildes of NYU Law School has suggested a second shaming strategy. Pildes notes that it is not only difficult to pass election reform at the national level, but that national reform will often be too general to be meaningful; he writes that they will be "feel-good, credit-claiming exercises, at least until there’s a concrete experience at the state level." Pildes thus argues that foundations should choose a single state to serve as the "poster child" for election reform (he suggests Ohio). Pildes suggests that this focused effort might result in the passage of a comprehensive package of reforms.

The benefit of Pildes' strategy may be two-fold. First, passing reform at the state level allows reformers to take advantage of the ways in which well-funded initiative campaigns can pressure legislators to do the right thing (a dynamic that cannot be reproduced at the federal level). Second, the state-level reform could serve as a model for, and build momentum behind, national reform. After all, there is no such thing as a silver bullet in election reform. We are much more likely to see noticeable results from a package of reform than from the type of piecemeal change that typically gets passed today. Pildes may be right that the only way to get such a package through the process is by focusing reform resources on a single state.

Pildes' strategy is a gamble, to be sure. Focusing resources on one state means neglecting problems elsewhere. But the potential payoff is intriguing. If the package of reforms produces a well-run state system, reformers would have a powerful shaming mechanisms to use at both the state and national level (and a blue print for how to get a variety of reforms passed).

Like the proposals discussed on Monday and Tuesday, the shaming strategies suggested by Foley and Pildes are "here to there" strategies -- intermediate steps designed to change the terrain on which reform battles are fought in the hope that reformers can win more of those battles in the future.

In my final post tomorrow, I will talk a bit more generally about the "here to there" question and suggest a few broad arguments as to what a new specialty in the electoral reform process might look like.

Comments:

The Original election reform Sin, and therefore the original shame, is that politicians vote on the circumstances and voting systems for their own re-elections, and yet still seek to game those rules to partisan or personal advantage.

Classic example: Pursuant to House Administration committee amendments on May 8, 2007, HR 811 (the "Holt bill") reversed its earlier position of free source code disclosure on e-voting machines to any citizen, in favor of strict Nondisclosure agreements incorporating state trade secrecy laws that provide for punitive damages and fees for violators of those NDAs. As such, HR 811 authorizes only very limited disclosures on pain of NDA legal penalties, and therefore constitutes a legislative recognition of trade secret vote counting as appropriate for congressional elections.

How secret vote counting could possibly be deemed to be legitimate by anyone, given especially that secrecy is necessarily a total lack of accountability and checks and balances, is beyond me. Emerging from a smoke-filled back room with a computer that counts invisibly and claiming "transparency" in any way would be and is Orwellian.

One wonders whether Congress has enough shame to realize that, at the point of voting, the people are sovereign, and that there is therefore no more basis to hide the vote counting from the people, than there would be legitimacy in an employee hiding information from his or her employer.

Presently, the secret vote counting that exists de facto arises only by contracts to purchase voting machines, but these contracts can not possibly alter the rights of non-signing citizens. So a bit of history and a lot of democracy is riding on this illegitimate attempt at institutionalizing in the law the privatization of public vote counting. Shame on the Congress.
 

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