Balkinization: Do the Rules of the Game Matter When You Are Playing in a Hurricane?

Do the Rules of the Game Matter When You Are Playing in a Hurricane?

Heather K. Gerken

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Thanks to both Rick Hills and Ilya Somin for their smart replies to my posts (here and here). I just wanted to add one addendum to Rick Hills’ illuminating argument about why legal institutions help politics work. It’s a point I made a few days ago on the AALS’s election law panel, where I questioned whether political polarization had undermined some of the basic assumptions of the field. My response to Rick raised essentially the question -- whether political polarization has undermined some of the premises that have traditionally undergirded federalism debates. Colloquially, the worry can be expressed this way: do the rules of the game matter when it’s being played in a hurricane?

Rick writes that “the core of our disagreement is . . . whether and how legal institutions promote pluralist politic.” That’s a failure of exposition on my part, because I don’t think Rick’s summary captures the core of our disagreement. I have always believed that institutions and legal rules shape politics – that the rules of the game shape how the game is played. Indeed, almost all of my work has been devoted to this idea. I also take that claim to be the fundamental premise of both of my fields, election law and constitutional law, though Daryl Levinson’s important Foreword may change our thinking on these questions in the coming years.

My worry – certainly not a new one -- is that the gale forces of polarization are putting more pressure on our institutions than they can bear. And by “polarization,” I am referring to the tribal dimensions of polarization – the fact that both sides view the other’s positions with deep skepticism, even hostility. The core of my disagreement with Rick, then, isn’t whether legal institutions promote pluralist politics generally, but whether they are strong enough to do so at this moment in time.

Rick argues, sensibly and intelligently, that legal institutions generally – and federalism in particular – shape our politics. He further explains how federalism can promote pluralist politics. Those are completely intuitive points. As I’ve said, the premise of most work in constitutional law and election law is that the rules of the game determine how the game is played. Indeed, Sam Issacharoff has made the same kind of point about political parties in his recent Frankel lecture. There he suggests that legal changes have systematically disabled the leadership of political parties from exercising sway over their candidates. As a result, party leaders cannot create the necessary incentives for moderation, and office holders are being pushed from the center.

I think it’s possible to agree with everything Rick and Sam say and still wonder whether they are right. As I noted in my response to Rick, institutions that “help politics work depend on politics to work.” At some point, politics may become too powerful a force for institutions to play this beneficial role.

To ground this, it’s probably easiest to start with Sam’s excellent paper, which perfectly embodies what I take to be the core commitments of the field. His paper asks how we can reduce the effects of polarization through legal/institutional change. But, as I’ve recently written, the real question may be whether we can. It’s possible that legal changes contributed to rising levels of polarization; but it’s also possible that the two phenomena occurred simultaneously or, at the very least, that the latter matters a good deal more than the former. Sam offers a cheerful tale – give more power to the party leaders, and they’ll rein in the extremists. That’s a story I would have credited instantly a few years ago. But now I fear there are at least two other possible endings to Sam’s story. The first is that even an empowered leadership structure simply can’t exercise enough control over its members to make a difference. The second is that it is possible for the leadership to exercise control over its member, but that shift will only ensure that the leadership is targeted by the same forces now pushing candidates to the extremes. Put more succinctly, if the DNC has more power, extremists will target the DNC, and the results will be little different.

Sam, in short, wants to give the party leaders a better hand to play. But it doesn’t matter how many trump cards you hold if you are playing in a hurricane.

My response to Rick follows roughly the same line.

During a period of normal politics, everything he says seems completely sensible. Indeed, I’ve said many of the same things before (though Rick worries more about judicially enforced limitations whereas I think that state power is protected mostly through administrative and political interdependence). But the worry I tried to convey in my post is that polarization may become so extreme that federalism may not be able to play the important role it has played in facilitating healthy politics in the past. Federalism both facilitates pluralist politics and requires some pluralism to get up and running. That’s why I was particularly struck by Rick’s metaphor about viewing one’s opponents as Frankenstein. I’m not sure federalism can smooth over our disagreements if that’s your view. If you really think that what the other side is doing is monstrous, you aren’t going to allow for an exception to the national norm – which is precisely what is necessary for federalism to get up and running -- no matter what tradition or institutional practice holds.

It’s possible that it won’t matter. Even if one side is not willing to allow for an exception to the national norm, it may be that decentralization will allow the other side to carve one out. As I’ve noted elsewhere, uncooperative federalism emerges naturally from our highly decentralized system due to the federal government’s heavy dependence on the states to carry out its mandates. Still, each side’s willingness to live and let live surely matters at the margins, especially for those who – like Rick – want formal protections for state power.

I should emphasize that I mean only to raise questions, not offer definitive answers. None of us knows whether polarization is so powerful that it will prevent democratic institutions from playing their usual, salutary rolls. But one thing gives me pause. As Rick’s coauthor and my colleague, David Schleicher, has pointed out, the forces of polarization seem to be spreading across the globe despite substantial differences institutional structure and legal rules. No one, in short, has found a wind break. Schleicher’s point, combined with the marked departures from our institutional norms we’ve seen just during the last year, make me wonder about the way my fields talk about the relationship between politics and institutions. If polarization is a gale-force wind, then institutions that have served as wind breaks in the past may not work in the same way going forward. Sam and Rick are addressing a long-standing problem in law -- thinking about the rules of the political game. But what if we really are playing in a hurricane?

Posted 2:23 PM by Heather K. Gerken [link]