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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.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
Right now there's an interesting discussion going on among scholars, policymakers, and commentators about (1) whether the current fiscal crisis ought to prompt a New Deal 2.0, and (2) what a New Deal 2.0 should look like. If we want a New Deal 2.0, we will need a Democracy 2.0. After all, at some point the Obama Administration is going to have to get these policies passed.
Some naively think that the Obama administration can pass anything it wants because the Obama campaign had so many energized supporters and such an impressive grassroots network. That's a mistake. Electioneering is different from governing. Note, for instance, how hard it's been to convert Obama for America into an equally muscular Organizing for America. Elections are the rare moments when voters pay attention; the drama of the race focuses people's attention on the issues, and candidates provide human stand-ins for abstract policy proposals. Politics, in short, is what happens when policy gets personal.
When candidates turn to the workaday project of governing, voters tend to fall away. They stop organizing, they stop volunteering . . . they even stop paying attention. That is precisely why passing policies comparable in scope to the New Deal is exceedingly hard to do.
In my first post, I consider whether the institutions that have grown out of recent elections -- Organizing for America, MoveOn, Talking Points Memo, DailyKos, ActBlue -- are capable of creating what Justice Frankfurter called a "civically militant electorate," keeping voters sufficiently involved in the project of governance to hold politicians' feet to the fire.
In my second post, I ask whether we should instead resign ourselves to the possibility that citizens are not going to actively police their representatives between elections and thus place our faith in their ability to "vote the bums out" at the next election. Anyone familiar with the astonishingly high re-election rates in Congress will be deeply skeptical of this approach. Voters use party ID as a rough proxy for holding election officials accountable. The problem is that voting based on party ID isn't usually enough to put the fear of God into politicians; it's too rough a proxy for holding politicians accountable on specific issues. Americans want health care reform, yet they routinely vote for politicians who don't provide it. As long as people vote based on general conditions, not specific legislative failures, the status quo remains a pretty safe option for politicians.
The question, then, is whether we can give voters more fine-grained shortcuts so that voters start punishing politicians not just for presiding over a fiscal crisis, but for failing to enact health care reform. I offer a few ideas along those lines in my conclusion. Posted
by Heather K. Gerken [link]