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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
NOW AVAILABLE from
Barnes and Noble
Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Category Archives: legislation and legislatures
More Sarah Binder on potential changes to the filibuster rules.
Sarah Binder sees confusion ahead.
Newly elected congressional Democrats had just a week to savor their victories before coming face to face with a harsh reality of Washington.
At a party-sponsored orientation session, the freshmen — many still giddy from winning close races in which they espoused grand plans to change the Capitol’s toxic atmosphere — were schooled in their party’s simple list of priorities for them.
Raise money. Raise more. Win.
The newcomers were told to devote at least four hours each day to the tedious task of raising money — so-called dialing for dollars — so they could build a war chest and defend their seats, according to those present. That’s twice as much time as party leaders expect them to dedicate to committee hearings and floor votes, or meetings with constituents.
Some members were flabbergasted. One rolled his eyes and walked out of the room.
Very important NYT article on what’s going on with the Senate, procedurally and politically.
“Regular order!” That has been the demand of House Republicans for three years, insisting on a return to the distant days when Congress actually passed budget resolutions and spending bills, instead of paying for the government through shortsighted stopgap measures.
“Senate Democrats have done nothing,” Speaker John Boehner said on “Meet the Press” on March 3, referring to the Senate’s failure to pass a budget since 2009. “It’s time for them to vote. It’s time for us to get back to regular order here in Congress.” The two chambers could try to resolve their differences in a conference committee, he said, “and maybe come to some agreement.”
But a funny thing happened a few days after those comments were made: the Senate agreed to that demand and actually passed a budget. Suddenly all those Republican cries for regular order stopped. Suddenly the House has no interest in a conference with the Senate. Instead, Congress is preparing for yet another budget crisis.
There has been a quiet upheaval in the lobbying industry.
On the surface, the firms that represent thousands of businesses, trade associations and special interests are taking a beating.
In practice, however, the lobbying industry is moving below the radar. More than $3 billion is still spent annually, more of which is not being publicly disclosed. Corporate America is relying on new tactics to shape the legislative outcomes it wants.
The adoption of innovative practices by the influence industry, combined with legal reporting requirements that are full of loopholes, have created misleading indicators which suggest that there has been a decline in the clout of the lobbying sector.
In fact, lobbying techniques have evolved so as to elude the regulations that implement the 1995 Lobbying Disclosure Act. These regulations are revised every 6 months in “written guidance on LDA registration and reporting requirements” issued by the Clerk of the House and The Secretary of the Senate.
“Constitutional Interpretation and Congressional Overrides: Changing Trends in Court-Congress Relations”
Ryan Emenaker has posted this draft on SSRN. Here is the abstract:
National policy is shaped through frequent interaction between the Court and Congress. The Court devotes the largest portion of its work to applying and interpreting congressional statutes. Congress considers these interpretations in future legislation. The Court’s use of judicial review to nullify acts of Congress is one of the most contentious aspects of this relationship. However, the interaction that occurs after judicial review is often ignored. When trying to understand Court-Congress relations, it is important to note Congress often overrides Court decisions. Historically the Court rarely rules against Congress. From 1791-2010 the Court nullified just 167 acts of Congress — an average of less than one-a-year. However, this type of interaction has rapidly increased. Nearly 60 percent of all federal laws struck down have occurred since 1960. The Rehnquist Court alone is responsible for nearly 25 percent of all nullified federal laws. Understandably, the rapid acceleration in judicial activity has renewed fears of an imperial judiciary. These fears are partly based in the incorrect assumption that policy development ends with judicial review. The results of this study indicate that as the Court has become more active in striking down congressional acts, Congress has increasingly resorted to overriding these decisions. This study also indicates that increased instances of judicial review suggest changing trends in Court- ongress relations rather than signifying judicial finality.
As I told Professor Emenaker, he’s using the term “override” differently than both Bill Eskridge and I do in our work on overrides. When Congress responds to a constitutional holding of the Supreme Court by passing a statute which does not amend the Constitution, I would not count that as an override.
I just received reprints of my piece on statutory overrrides, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review 205 (2013).
Tonja Jacobi and Jeff Van Dam have posted this draft on SSRN. Here is the abstract:
The filibuster has effectively become a supermajority requirement for all lawmaking in the Senate, an effect worsened by ill-conceived attempts at its reform. Once an obscure budgetary procedure, reconciliation is now the primary mechanism of avoiding filibusters, and so it is now the means by which the most significant pieces of legislation in recent years have been passed. The effectiveness of mechanisms of restraining reconciliation — particularly the Byrd rule — as well as constraints on more meaningful filibuster reform all hinge on who has supervisory power over Senate rules. Ultimately, this rests not in the courts or the Parliamentarian but in the Senate itself. The battle between majoritarian and minoritarian power in the Senate, and so over the nature of legislation creation in Congress, depends upon individual incentives and institutional norms. We show that those incentives are structured towards minoritarian power, due to particularism, institutionalized risk aversion, and path dependence. Consequently, filibuster reform is likely to be continually frustrated, as the most recent skirmish illustrated. Only through the largely accidental change proffered by reconciliation has majoritarian power resurfaced, and yet still the pull of minoritarian influence continues to reassert itself.
Washington used to be a place where lawmakers openly traded votes for both concrete and symbolic concessions from the executive branch, whether it was a project in a member’s district or simply the president’s presence at a specific event.
But the press, watchdog groups and many politicians began demonizing this practice and now, appropriations bills are free of the so-called “earmarks” that eased the passage of everything from the North American Free Trade Agreement under President Bill Clinton to prescription drug coverage for seniors under President George W. Bush.
“US Senate Succumbs to NRA Protection Racket: Filibuster Assures Easy Access to Guns for Criminals, Mentally Ill People and Terrorists”
Richard Painter, President Bush’s ethics czar, has this post at the Legal Ethics Forum.
“Bribery isn’t what it once was,” said an official with one of the major gun-control groups. “The government has no money. Once upon a time you would throw somebody a post office or a research facility in times like this. Frankly, there’s not a lot of leverage.”
Politico: “The Senate minority leader has signaled privately that he has no interest in sitting in the same room as Majority Leader Harry Reid (D-Nev.) to discuss a possible “grand bargain” on budget and tax issues, Senate insiders tell POLITICO. McConnell is fine with talking to Obama — just talking at this point — but he doesn’t want Reid there when it happens.”
Dan Balz: “Bipartisanship and cross-party alliances are suddenly in vogue in the Senate this spring. The question is whether the Senate is a leading indicator of a change in politics or largely an aberration in a nation divided along red and blue lines.”
“The Republican Advantage: The decline of swing districts and the rise of partisanship spells trouble for House Democrats.”
By now, the trend lines are clear. In 1998, we found 164 swing seats—districts within 5 points of the national partisan average, with scores between R+5 and D+5 (a score of R+5 means the district’s vote for the Republican presidential nominees was 5 percentage points above the national average). The data 15 years ago showed just 148 solidly Republican districts and 123 solidly Democratic seats. Today, only 90 swing seats remain—a 45 percent decline—while the number of solidly Republican districts has risen to 186 and the count of solidly Democratic districts is up to 159.
In 1998, the median Democratic-held district had a PVI score of D+7, and the median Republican-held district had a PVI score of R+7—pretty partisan, but far from monolithic. Today, those median numbers are D+12 and R+10, and that 22-point gulf is the main structural driver of the political paralysis we lament today. Not coincidentally, the most Democratic and the most Republican House districts have never been further apart—Democratic Rep. Jose Serrano’s Bronx seat in New York City is D+43 on our scale, and Republican Rep. Mac Thornberry’s Texas Panhandle district is R+32—a 75-point chasm.
Don’t miss this graph.
“Statutory Interpretation from the Inside — An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I”
Abbe Gluck and Lisa Schultz Bressman have posted this draft on SSRN (forthcoming Stanford Law Review). This looks to be a top-of-the-pile must read. Here is the abstract:
What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship.
Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress.
All of these findings, and many others, allow us to press for a more precise answer to one of the fields’ foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how “neutral” some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.
Believe me, I’m more annoyed at having to write this column again than you are at reading it. But dammit, nothing changes. The Republican Party has gone off the rails by virtually every available measure, and the media continue to blame “both sides.”
Let’s look at some data. According to a forthcoming study in the Drake Law Review by Richard Hasen, a law professor at the University of California, Irvine, we are experiencing “the largest and most uniform gap in the ideological orientation and voting patterns in the Senate and the House of Representatives in modern times.”…
Continuing an uneasy standoff with Republicans on filibusters of President Barack Obama’s nominees to the federal courts and to executive branch positions, Senate Majority Leader Harry Reid indicated Tuesday he isn’t quite ready to pull the trigger on changing Senate rules to curb or abolish such filibusters.
A move by Reid to change Senate filibuster rules by a simple majority vote – sometimes called the “nuclear option” – would spark a major battle with Senate Republicans.
MORE from Roll Call.
Rick Hasen has a really interesting paper up discussing partisan polarization and the possibility of changing the Constitution to deal with it. (And you should really read Jonathan Bernstein’s response, too.) Hasen starts off by asking whether we should be considering moving toward a more parliamentary style of government.
It’s a fair question. We have what looks like a serious mismatch between our parties and our governing institutions. We live in an era of sharply distinct, internally disciplined, programmatic parties with very different visions of how the nation should be run. That’s fine—we have some time-honored institutions, such as elections and majority-rule legislatures, for settling disagreements, even when the disagreements are sharp.
TPM: “Senate Majority Leader Harry Reid (D-NV) threatened in his most explicit terms yet to use the so-called nuclear option to weaken the filibuster if Republicans keep blocking judicial and other nominees from coming to a vote.”
NYT: “Members of both parties say Mr. Obama faces a conundrum with his legislative approach to a deeply polarized Congress. In the past, when he has stayed aloof from legislative action, Republicans and others have accused him of a lack of leadership; when he has gotten involved, they have complained that they could not support any bill so closely identified with Mr. Obama without risking the contempt of conservative voters.”
“The Republican Party is officially broken: Washington’s problem isn’t partisanship or a fatally flawed system. It’s that one party is massively dysfunctional”
Jonathan Bernstein has written this piece for Salon responding to my new draft article (which I presented Saturday at the excellent Drake Law School symposium), Political Dysfunction and Constitutional Change.
The American political system is not broken. What’s broken is the Republican Party. And it’s not clear how it will recover.
What’s wrong with American politics and what can be done about it is the question that election law expert Rick Hasen sets for himself in a fascinating new paper. In particular, he asks whether American politics is so broken that the only cure is to chuck the Constitution and replace it with a parliamentary system or some other radical systemic reform.
I think the emphasis on partisan polarization is misplaced. There’s nothing about strong partisanship that makes effective government in the U.S. impossible. That Hasen highlights budget problems makes this, in my view, especially clear. Budgets are, by their nature, fairly easy to cut deals on! Indeed: I suspect the game theorists might actually find that it should be easier for two well-organized parties to cut those deals, even if their ideal points are quite distant, than it would be to reach a deal between unstructured, factionalized parties, even if there are no extremists among them. During the current 113th Congress, all that should be needed is for the captains of both teams to find an agreeable midpoint, and budget issues can be solved.
And yet: dysfunction, crises, threats of shutdown and irrational outcomes no one claims to want.
My conclusion? It’s not partisanship. It’s not polarization. It’s not even extremism.
It’s the Republican Party. The GOP is broken. Not too conservative; not too extreme. I have no view of where the GOP “should” be ideologically, and I don’t think there’s much evidence that being “too conservative” per se is losing elections for Republicans.
I hope to write a response to Jonathan’s very interesting piece soon. In the meantime, I’ll be doing a live chat tomorrow at Talking Points Memo about the new piece. It should begin at 6 pm eastern. Thanks also to Taagen Goddard’s excellent Wonk Wire (now housed at Roll Call) for making my paper its Abstract of the Week.
Introduction to new issue of Legisprudence.
For those who love “I’m just a Bill,” this is not for the squeamish. Watch.
This Essay was prepared for a symposium at Drake Law School on “The U.S. Constitution and Political Dysfunction: Is There a Connection?” Signs of political dysfunction abound in the United States government. Perhaps the best illustration is the ongoing fight over the U.S. budget, the national debt, and tax and entitlement reform , which has led to extraordinary (and so far unsuccessful) efforts to resolve legislative stalemate including the “super committee” and the sequester. The source of these deadlocks over budget reform is hardly a mystery: it is the mismatch between highly ideological political parties and our divided form of government which makes passing legislation difficult even in the absence of partisan deadlock. The partisanship of our political branches and mismatch with our structure of government raise this fundamental question: Is the United States political system so broken that we should change the United States Constitution to adopt a parliamentary system either a Westminster system as in the United Kingdom or a different form of parliamentary democracy? Such a move toward unified government would allow the Democratic or Republican parties to act in a unified way to pursue a rational plan on budget reform on other issues. Voters could then hold the party in power accountable if the programs its pursued were against voter preferences. It seems a more logical way to organize politics and insure that each party will have a chance to present its platform to the voters, to have that platform enacted, and to allow voters at the next election to pass on how well the party has managed the country. But changing the Constitution is a big deal.Even if a sense of national crisis and paralysis allowed an opening for parliamentary constitutional change, we should not lightly change the fundamental rules of our governance. There is a value to our constitutional tradition. Change can have unintended consequences. The country has weathered many crises under our existing form of government, and tinkering with long-term success, even given profound recent dysfunction, can be dangerous.
In this Essay, I briefly examine four arguments against making constitutional change to deal with current political dysfunction. The first two arguments contend that the current governmental system is not that dysfunctional. First, the current political stalemate may reflect the preferences of the median voter or the public at large. Second, the current political system actually produces a good amount of legislation, and a parliamentary democracy might produce too much rash legislation. The third argument accepts the premise that the current system is dysfunctional, but contends the dysfunction could be cured by sub-constitutional change, such as eliminating the filibuster or adopting additional open primary systems to produce more moderate candidates. The fourth argument also accepts the premise that the current system is dysfunctional, but sees that dysfunction as temporary, and expects dysfunction to be self-correcting as voters reject the current Republican Party far from the median voter, leading the Republican Party, and then Democrats, to move to the center. Evidence supporting the first three of the arguments against constitutional reform is conflicting and somewhat weak, but that the fourth argument is plausible and hard to evaluate in the midst of a potentially transformative era. We are in the middle of a highly partisan moment in American history but it is hard to know how long it will last. I conclude it is worth waiting to see if the political system self-corrects, especially given the risks of tinkering with the constitutional system and the value of not changing our constitutional traditions lightly. Given current political dysfunction which would block a move toward a parliamentary democracy in any case, waiting not only prudent but unavoidable.