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 msl46 at law.georgetown.edu
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 Part V: Changing the Institutional Terrain
During the last few days (here, here, here, and here), I have tried to sketch what I think ought to be on the agenda of academics and reformers interested in changing how our election system is run. Because it is so difficult to get election reform passed in this country, I argued that we should focus on the "here to there" problem -- changing the institutional terrain on which reform battles are fought in the hope of creating a more receptive environment for reform generally. We need a new specialty in election law, so that people are as likely to claim expertise in the electoral reform process as they are in campaign finance or districting. I also identified two main lines of inquiry for that new specialty: (1) harnessing partisan energies in the service of reform and (2) engaging citizens in reform debates. I could spend days throwing out more ideas – several inspired by the excellent comments posted by Balkinization readers – and developing the ones I've merely sketched here. Nonetheless, I'll close by saying a bit about the underlying assumptions behind the proposals I have described and explaining why I think they represent plausible first steps.
The main assumption behind these proposals is a premise that undergirds my field and, indeed, most arguments for reform: process shapes substance. Academics and reformers will always tell you that the structures of our democracy help determine the substance of our politics (who gets elected, what gets passed).
What puzzles me is why we have not applied that lesson to the electoral reform process. As I have argued this week, the structure of the reform process determines what kind of reform gets passed. Or, in the case of the United States, the structure of the reform process means almost nothing gets passed. Rather than continuing to fight reform battles on this hostile turf, we should focus on changing the underlying terrain.
The most effective way to change the terrain, in my view, is to blend ideas from the two major intellectual camps in my field. On one side are the participatory democrats, who favor bottom-up, grass-roots reform. On the other side are the competitive democrats, who subscribe to an elite-centered vision of politics and chide the participatory theorists for ignoring the role that power and elite incentives play in shaping electoral politics.
If we want to create a virtuous cycle for reform, we must combine elements of these two theories. We should take advantage of the many ways in which political elites generate political energy -- serve as "conversational entrepreneurs," to use Robert Bennett’s term -- and redirect that energy into a conversation about reform. And we should make it easier for citizens to take part in that conversation. As I noted yesterday, these two strategies are mutually reinforcing. If partisan self-interest is redirected toward reform, political entrepreneurs have an incentive to find new ways to frame, and draw citizens into, reform debates. If citizens become more engaged in reform debates, political elites will have more incentive to care about reform.
Consider, for instance, Michael Kang's and my proposal that courts adopt a "Procedural Solution to Partisan Gerrymandering." The idea is that the standard of review used by a court to review a districting plan would depend on whether the process that created that plan was appropriately democratic. The courts would thus grant deference to -- perhaps even create a "safe harbor" for -- districting processes with sound democratic credentials.
Think about the incentives such an approach would create for political elites. If a legislator wanted his plan passed (or if he wanted to challenge the plan passed by his opponents), he must compete with his opponents for the support of the citizenry. That means that the intense partisan energies currently devoted to districting battles behind closed doors would be redirected outward toward the citizenry. Because political elites need to drum up support for their proposals, they would suddenly have an incentive to figure out how to frame these issues for everyday citizens. Supporters of a given plan would have to talk about what makes a good districting plan. Opponents would raise questions about the self-interest of those drawing the plan, the absence of competition, or the need for partisan fairness. Political elites, who are old hands at framing issues and generating political energy, would suddenly feel pressured to initiate a conversation about the way we run elections. Perhaps that conversation would eventually lead citizens to demand the type of ideal districting process reformers would prefer. Perhaps not. But having that conversation seems like a pretty good start.
Or consider another strategy for generating a virtuous cycle of reform: the proposal that Congress create a Democracy Index, a national ranking system of state election practices. Because the Index provides citizens with a metric -- a useable cue for evaluating the job performance of secretaries of state -- the Index seems destined to be used as a political weapon in campaigning. And that is a good thing, despite the obvious risks. If the parties can use the Index to political advantage, they have every incentive to get the word out about how well (or badly) our election system is run. The back-and-forth that ensues will provide information about how well our election system works. The parties, in effect, become a built-in publicity machine for educating voters about the need to reform our election administration system. To be sure, this is a conversation starter, not a conclusion, but a conversation starter is what we need right now.
One might fairly ask whether it realistic to think that these intermediate strategies and institutional interventions are more likely to succeed than bread-and-butter reform proposals, like revamping the campaign finance system or creating a nonpartisan election system. It may be that the institutional terrain is too hostile for even these modest interventions. But there are a few reasons to think that it is easier to pass these proposals than conventional reform.
First, these ideas are a good deal more modest than the usual proposals for reform. It seems more likely that legislators will create an advisory commission on electoral reform than give up their power to set the rules entirely. It seems more likely that Congress will ask states to disclose basic information about how the election system is run than to regulate state election systems top-down. It seems more likely that a court will invalidate a redistricting plan on the ground that the redistricting process was undemocratic than on the ground that the plan itself was substantively unfair. In contrast to most reform proposals, none of these ideas requires legislators to give up control over the election system. Instead, they make it easier for citizens to influence how legislators wield that power.
Second, precisely because these proposals are intermediate strategies -- designed to change the institutional terrain for reform battles rather than enact a particular kind of reform -- many of them have no obvious political valence. It is not hard, for instance, to figure out which party will be helped by a particular campaign finance law or a voter registration rule. These proposals, in contrast, seem less likely to favor one party or another precisely because they are one step removed from substantive proposals.
Finally, most of these proposals harness decentralization in the service of reform. One of the great complaints in reform circles is that our system is too decentralized. Reform is difficult because the election system is run by so many institutions (administrative agencies, legislatures, courts) at so many levels of government (local, state, federal). Many of the strategies I have described often depend on appealing to an actor in one part of the system to help regulate another part, thus mitigating the self-interest problem that usually shortcircuits meaningful reform. The Democracy Index proposal, for instance, asks the federal government to help regulate state administrators. The partisan gerrymandering proposal asks courts to make it easier for the people to have a say in the districting process. Some of these proposals can even be done through purely private means (like Ned Foley's proposal for creating "shadow courts" for resolving election disputes).
There is obviously a good deal more to be said about these and other issues. But that is the point of these posts. There is lots of work to be done on the "here to there" problem . . . and lots of good practical and intellectual reasons to do it. Posted
by Heather K. Gerken [link]
Again, thank you so much for this series of posts.
I have one question about the "harnessing" side of this approach to reform. To what degree can the specific conditions of the emergence of a given reform proposal (by which I mean a non-traditional one like the examples you laid out for us) influence its reception in the traditional arenas of government?
For instance, it seems that the sponsors of a particular proposal lend attributes to it by association that can interfere with (or boost) its reception. If Dick Cheney were the author of the original Democracy Index idea, I imagine the knowledge of that origin would have had an effect upon other's perceptions and their willingness to form the proposal into actionable legislation. I don't think that effect would be necessarily limited to the "competitive democrats" either.
At a higher level, there's the Lakoff problem. Once people know the trick ("changing the frame"), they become acutely aware when it's being used. If "changing the terrain" comes to be recognized as the means through which we can incrementally achieve reforms that are nigh unto impossible otherwise, to what degree does this knowledge allow supporters (both traditional elite politicians and related grassroots campaigns) of the status quo to "detect" possible threats to the system and act to block them, or dismiss them outright as political maneuvering?