An intriguing institutional design question: shadow redistricting commissions

Heather K. Gerken

Three weeks ago I published an op-ed in the Legal Times proposing that we create shadow districting commissions to mitigate the problem of partisanship in redistricting (follow-up blogs can be found here and here). During an informal workshop discussion of the idea here at Yale, I realized that "shadow institutions" -- like my shadow districting commission or Ned Foley's amicus court proposal – present an intriguing set of institutional design questions.

Shadow institutions are designed to combat what I've called the "here to there problem." Academics and reformers spend a lot of time on the "here" (identifying the problems we have now) and the "there" (figuring out how things ought to look in the future). But we don't spend enough time figuring out how to get from "here to there" -- identifying the interim strategies and institutional tweaks that would create an environment in which meaningful reform might take root.

Shadow districting commissions are a "here to there" strategy. They don't represent the final solution -- which most agree should be nonpartisan districting commissions -- but should help us move us toward it. In the short term, shadow districting commissions would give the public a baseline for evaluating the decisions of self-interested legislators who draw their own districts. They can thus help shame those in power into doing better, tamping down on the most egregiously partisan decisions. In the long term, shadow districting commissions raise awareness about the need for more substantial reform. Whenever a legislature's districting plan deviates from its shadow's, someone -- a journalist or reformer or someone on the losing side -- will draw attention to that fact. A shadow districting commission, by its mere presence, reminds us that we can do better.

Because shadow districting commissions are a "here to there" solution, not a final one, they pose a distinct set of design challenges. Usually academics and reformers, focused on the "there" question, think only about designing the ideal districting commission and thus hone in on set of concerns familiar to anyone who has thought hard about creating independent administrative agencies. While these concerns are surely relevant to designing shadow districting commissions -- particularly to the extent that we want the shadow commission to "model" how a well-functioning nonpartisan party would function -- we must also keep in mind that the main reason for creating such commissions is to provide the public with a baseline for evaluating what legislators are doing today.

Because districting issues can be quite complex, what the public needs is a heuristic -- something that tells them whom to trust in districting battles. In most political debates, people rely on party labels to guide their decisions, as David Schleicher has recently explained in his smart review of Bryan Caplan's new book. The label "Democrat" or "Republican" offers voters the rough political equivalent of the Good Housekeeping Seal Approval. In the districting context, however, that heuristic isn't reliable because legislators are looking out only for their interests, not voters'. Voters need a better heuristic to guide them, and shadow districting commissions are there to provide it.

We thus face a different kind of design question in creating shadow institutions than we do in creating more traditional ones. Designing the permanent solution means creating an institution that is above politics. Designing the "here to there" solution means creating an institution that can change politics. Their different purposes may result in different design choices.

Consider a concrete example. Most people who favor independent nonpartisan districting commissions think that they should be staffed entirely by academic experts and technocrats. But a shadow districting commission designed along these lines might be less effective than, say, a commission composed of randomly drawn citizens (one modeled on the citizens' assemblies deployed in British Columbia and elsewhere). As I have argued here and elsewhere, a shadow districting commission composed of experts and technocrats will be vulnerable to at least two kinds 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.

A shadow districting commission composed of randomly drawn citizens would be immune to such attacks. No politician worth his salt is going to claim that such a group is undemocratic or that everyday citizens have a partisan axe to grind. In British Columbia, for instance, the two major parties opposed the electoral reform endorsed by the province's citizens' assembly. But they were afraid to speak out against it, precisely because it was backed by citizens. The best politicians could do was maintain a virtual radio silence on the subject.

Needless to say, there's a balance to be struck here. One reason for the public to pay attention to a shadow districting commission is, of course, expertise. The group putting the shadow commission into place might decide that it would be better to include a mix of experts and citizens on the commission or to have experts hold public hearings to garner citizen input. It may also be that the public would be willing to rely on a commission composed of experts when it has been assembled by an institution with an assiduously nonpartisan reputation, like the League of Women Voters, the AEI-Brookings Election Reform Project, or a major foundation.

The point here is simply that shadow institutions intended to get us from "here to there" in election reform present a distinct set of institutional design puzzles. On the one hand, we want them to show the public that a better alternative exists, modeling how a body that is removed from politics ought to function. On the other hand, we want them to have enough political appeal to change today's politics. As I’ve written elsewhere, designing institutions that can change the political landscape requires a bit of politicking but not too much; the key is to figure out how to inoculate such institutions against political disease while warding off a full-scale political infection.


Posted 9:15 AM by Heather K. Gerken [link]