Balkinization  

Sunday, September 07, 2008

Character v. structures

Sandy Levinson

I suppose I should apologize for harping on the point, but I was irritated by John McCain's reference, in his acceptance speech to the" me-first-country-second" crowd in Washington. I put to one side the snarky comments about McCain's being more than willing to serve the interests of his wealthy Arizona contributors or the obvious "me first" motivation behind the choice of the unfit Gov. Palin as the person one-heartbeat away from succeeding the 72-year-old McCain. (If I were a practicing, instead of amateur, psychologist, I'd talk about projection.) My point is far more fundamental.

If one assumes the validity of his slanderous comments about his colleagues (and friends?) in Congress, then perhaps one might look to the Constitution for an explanation: The fact that every single member of Congress is elected from a defined geographical area and subject, in the case of members of the House, to election every two years, guarantees that "rational" members of Congress will put the interests of their constituents, who will enable their re-election, ahead of evanescent interests of "the country." Democratic senators and represenatives from Michigan can be offered as examples, to prove my non-partisanship on this point. If McCain (or anybody else) wants to increase the number of "country first" members of Congress, then we have to talk about restructuring our institutions in such a way that there will be greater incentive for leaders to take the broader view. Larry Sabato has an interesting discussion of this point in his book on the Constitution (which also calls for a new constitutional convention). And this would include getting rid of the electoral college, which generates incentives to pander to "battleground" states and to ignore the rest.

One of the worst features of our present politics, and I've said before (and will undoubtedly say again) is that it leads people of all politial persuasions to focus on" character," "leadership," and "vision" and away from even the beginnings of a conversation about how structures generate these attributes. Barack Obama is, of course, no better in this regard than John McCain. He may have taught constitutional law for ten years, but I would be pleasantly surprised if he ever thought seriously about structural issues, since, except for that tiny subset of such issues that are litigated, they are simply untaught and ignored in our leading law schools. The last presidential candidate seriously to address constitutional structures was probably Teddy Roosevelt. It's time for a change....

Comments:

One of the worst features of our present politics, and I've said before (and will undoubtedly say again) is that it leads people of all political persuasions to focus on" character," "leadership," and "vision" and away from even the beginnings of a conversation about how structures generate these attributes.

I'd tend to blame that on the low intelligence of the electorate more than anything else. Look at Britain or Israel. Very different institutions, same debased political conversation. I can also guarantee you that any proposed reform of how we elect Congress would be shot down in two seconds as 'un-American'; look at what happened to Guinier.
 

The lack of attention to structure is likely due to the fact that structure can't be changed quickly or easily. This is true of any structure, because the people elected under that structure will very rarely have any interest at all in changing it.

The solution that worked in Britain was to add a new player, the House of Commons. I think the American equivalent to the "new player" mechanism was supposed to be the Constitutional Convention, but we never really picked up on that.
 

"but we never really picked up on that."

I suspect that, some time in the next couple decades, enough states will finally get around to calling for such a convention. And then we're going to have a REALLY big fuss when Congress either ignores the call, or decides that it's own members are the appropriate delegates for the convention.
 

I think that Tray is very astute in evoking the example of Lani Guinier. I still hold it against Bill Clinton not that he dumped her--he had every right to make a political calculation that she hurt him more than helped him--but that when he did it he in effect suggested that he had only then read anything she wrote and that she was in fact "unAmerican" in her suggestions for electoral reform. That killed any opportunity to address the inadequacies of our electoral system.

As for the UK and Israel, both countries feature a lot of discussion about constitutional fundamentals (including, e.g., in the UK the abolition of the House of Lords and devolution of power to Scotland, and in Israel different modes of electing the prime minister). I agree that there is a great deal of corruption in Israeli politics--I don't know if the same is true in the UK.
 

Not only that, when he came out with his memoir he wrote that he dropped her because he believed in - if memory serves correctly - "one person one vote, not one person many votes." Now, there are arguments to be made against PR, but that's just silly. As for Britain and Israel, all I meant was that their campaign seasons are also dominated by nebulous talk of change, character, vision, and the like.
 

I would suggest that any "reform" which reduces the direct link between a member of the House and a defined geographical constituency would be undesirable. Some European states run "party list" systems for their lower house in which voters essentially vote for a party rather than a candidate for all or a proportion of the seats and the seats are allocated according to the order in which candidates appear on the party list - this means that the candidates are not really answerable to anyone other than the party machine!

May I suggest that the key reforms for the house might be a lengthening of the term so that candidates are not in permanent electioneering mode and reforms to the drawing of district boundaries. The Senate, as is well-known is a much bigger problem because of the distortions in the size of electorate per senator.

On ethics in politics, Professor Levinson might care to look at the work of the UK Committee on Standards in Public Life - Special and Annual Reports. They set out areas perceived as problematic and make proposals for reform and it is always interesting to see how different democracies are approaching common problems.
 

I would suggest that we need a balance between national, state and local views in the federal government, not just a national view. Wouldn't you know it, the Constitution provides just that with the President (national), Senate (states) and House (local).

At the risk of making Mourad backtrack on his positions again by agreeing with him, our British lawyer is essentially correct. The last thing we need is a party machine coming between the People and their representatives. I do not want to vote for the GOP. I want to choose a representative who is directly answerable to me and my neighbors.
 

Term limits were widely discussed not long ago, though Thornton put the kibosh on that, absent a constitutional amendment. A federal statute could acomplish anti-gerrymandering redistricting reform, though. Schwarzenegger's talked about that in California, too, at least.
 

"A federal statute could accomplish anti-gerrymandering redistricting reform, though."

A federal statute prohibits the most effective approach to anti-gerrymandering redistricting reform, proportional representation. The problem with election reforms of all sorts attained by legislation, is that genuine reform is scarcely ever in the interest of incumbents who were elected under the pre-reform system. When actually passed, you will almost invariably find that it has been warped into an incumbent protection measure.

The failure to accept this truth is but one of the failings of campaign 'reform' advocates.

I will say that our Constitution, especially post 17th amendment, suffers from a serious version of the "no man should be the judge in his own case" problem, by having so many issues of federal jurisdiction/power being resolved at... the federal level. I keep thinking that it ought to be possible to design a system where federal judges are all chosen at the state level, by states in different circuits.

You'd never get it without a constitutional convention, of course.
 

"A federal statute prohibits the most effective approach to anti-gerrymandering redistricting reform, proportional representation." That's right for the most part. Of course, we could change it. FWIW, the statute discussed in Branch v. Smith in 2003 provides for at-large voting in certain circumstances, and it could have been implemented with proportional voting. (Ted Kennedy thought it was outrageous for a CA5 nominee even to suggest at-large voting in a state like Mississippi, but the proportional-voting possibility takes a lot of the sting out of that charge, I think.)

"The problem with election reforms of all sorts attained by legislation, is that genuine reform is scarcely ever in the interest of incumbents who were elected under the pre-reform system."

That has some bite with campaign financing, but it's hard to imagine redistricting reform that would be less pro-incumbent than the system we have now, isn't it?

"[O]ur Constitution, especially post 17th amendment, suffers from a serious version of the 'no man should be the judge in his own case' problem, by having so many issues of federal jurisdiction/power being resolved at... the federal level."

One partial federal-statutory answer might be to abandon Rooker/Feldman, and let state courts themselves decide more federal questions, subject to review in the federal circuit courts.
 

As to the "unfit Gov. Pailn," (sic) for those who are unwilling to do their own research to watch and listen to Palin, here is the governor effortlessly fielding questions on a wide variety of issues on C-Span last year.

Here is Palin easily fielding questions on ANWR and other oil and natural gas reserves in Alaska with no problem saying that McCain is flat wrong on the issue.

Palin had her Reagan "There you go again" moment in the 2006 gubernatorial debates when she chastised her two male rivals for bickering rather then addressing the issues. There is a short snippet of this moment starting at 6:54 on this video.

If Biden misunderestimates the Governor the way the folks here seem to, Palin is going to slice and dice him in the upcoming debate.
 

"That has some bite with campaign financing, but it's hard to imagine redistricting reform that would be less pro-incumbent than the system we have now, isn't it?"

Incumbents seem to think otherwise, given their continual efforts at further gerrymandering. Challengers still occasionally win, (Albeit not at the rate they used to manage before "campaign reform" hit it's stride.) a real outrage as far as your average officeholder is concerned
 

As to the "unfit Gov. Pailn," (sic) for those who are unwilling to do their own research to watch and listen to Palin, here is the governor effortlessly fielding questions on a wide variety of issues on C-Span last year.

"Q: How old is the earth?"

"SP: Well, it might be 6000 years old."

"Q: When will the rapture come?"

"SP: Any day now."

"Q: Do you recommend Alaska real estate to avoid the horrors of Armageddon?"

"SP: Absolutely"

"Q: That jet you sold on E-bay., how much profit did you make on it?

"SP: $600K."

"Q: Is that positive or negative $600K?"

"SP: What's the difference? I mean, no, really, what is the difference?"

I'd point out that it is no surprise that "Bart" finds Palin intelligent. Einstein explained this all over a 100 years ago.

Cheers,
 

There are (at least) three views on proportional representation expressed in this thread: (1) desirable, let's just do it; (2) desirable but we'll never get there from here so let's focus on much less important but more feasible reforms; and (3) undesirable. I sense that (2) is the plurality, if not majority, view.

For those not in the third group, there's a way to get from (2) to (1). Start at the local level. This November, PR is on the ballot for city council elections in Cincinnati. Cambridge, Massachusetts has had it continuously since 1940. Davis, California voted for it in an advisory measure in 2006 and this November will vote on a home rule charter that would make adoption possible under state law. The quasi-proportional systems of cumulative voting and the limited vote are in use in more than 50 localities to settle voting rights suits.

This is a long road to travel, but a necessary one. I think that folks who wouldn't otherwise get involved in changing the structure of local government have a compelling motive to help out on this issue.
 

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