All posts by Tabatha Abu El-Haj

New Article on Democracy and Political Assembly

academic freedom, First Amendment theory, , , , , ,

At this time, when so many democratic norms and institutions of government and civil society are being challenged, I hope readers of this blog will be interested in my new article, A Right of Peaceable Assembly, forthcoming in the Columbia Law Review.

The development of an independent Assembly Clause doctrine is essential. It may once have been possible to dismiss the consequences of ignoring the textual right of assembly. This is no longer true. Our neglect of the right has significant contemporary consequences for political protests, as the campus protests since October 7, 2023, have demonstrated.

The functional absence of the Assembly Clause in First Amendment law and constitutional discourse fundamentally distorts our analysis of the proper scope of constitutional protection for political assemblies. This Symposium Piece develops a much-needed independent Assembly Clause doctrine. An independent Assembly Clause doctrine would not just be consistent with the text and original understanding of the Founders but also allow for a jurisprudence capable of distinguishing between protected and unprotected assemblies in relation to assembly’s distinct contribution to self-governance. The Piece recognizes that legal recognition of assembly as a textual right troubles the speech-conduct distinction that lies at the heart of contemporary First Amendment jurisprudence and upends existing determinations about the proper scope of constitutional protection for those who gather in public for political ends. The fact, however, is that the First Amendment explicitly protects a certain form of conduct (peaceable assembly), and it does so for good reasons (assemblies further liberal democracy in both instrumental and non-instrumental ways). This Piece, therefore, lays out a roadmap for an independent Assembly Clause doctrine capable of providing more appropriate constitutional protection, accounting for both assembly’s value and its social costs.

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Political Parties—New Ideas

political parties

As I mentioned in my last post on this topic, we have a political party that was elected in part because Americans are concerned about the price of groceries. Now that they hold three branches of government, their primary budget goal is to maintain and extend tax breaks that overwhelmingly benefit the very wealthiest in our society. And to pay for it, they are targeting food assistance, subsidies to health care through Medicaid and Medicare, and now Social Security.

As promised, here is the core of a new idea about how to think about rebuilding our party system. Again, this is a slight re-edit from an article I wrote almost a decade ago:

Wed to responsible party government and conceiving of parties narrowly and almost exclusively as ideological speakers, party reformers have been blind to the democratic potential arising out of the associational diversity within the partisan network. This blindness has prevented systematic consideration of both the part association can play in mobilizing and informing citizens and the ways that building out the associational life of contemporary political parties–by shoring up those nodes of the partisan network capable of fostering social ties between elected officials and activists and between activists and constituents–could contribute to good governance.

Contemporary party organizations, while not the membership organizations of bygone eras, have yet to shed their essential associational attributes. The era of nineteenth-century urban machine politics that depended on the confluence of relatively strong personal ties and a formal organization bound by patronage is long gone. Yet, even in the twenty-first century, political parties remain networks of individuals and groups– activists, donors, officeholders, and dealmakers–tied together and to the electorate by social connections of various strengths. Beyond their capacity to act as vehicles for aggregating and amplifying preferences and perspectives, the formal parties have an associational life, although there is great variation in the depth and breadth of that life.

Although some of this has changed since 2020 (particularly who votes), those concerned about the Democratic Party’s losses still have something to learn from this diagnosis:

. . . Without denying that the causes of our crisis in representation are numerous, an associational path to responsible party governance takes as its starting point a significantly underappreciated transformation of the political landscape: the increasing social isolation of political elites and its impact on both participation and the flow of political information between ordinary Americans and their leaders.

The contrast between the social networks of political elites today and those in prior eras of American history is both stark and revealing. While democratic politics is frequently a contest among elites, prior to the advent of mass media, candidates needed “to build extensive interpersonal networks not confined to particular occupational or social circles” to garner reputation and votes. As such, the path to political power ran through membership in socioeconomically integrated civic associations–the Shriners, the Rotary Club, the American Legion. These groups required regular attendance at meetings and frequently involved election to higher offices and attendance at federated meetings. Political elites were thereby prevented from becoming socially insulated from the rest of American society.

By contrast, electoral incentives today pull candidates and parties into a narrow social network of extremely unrepresentative and socially isolated donors and activists. Given the sheer cost of running a federal campaign in the current era, individuals running for office are required to tap their social networks for significant early capital to gain the confidence of party operatives. It is, thus, not surprising that a vast majority of members of Congress are millionaires.

Even beyond the donor circle, the tendency of contemporary political parties has been to eschew broad mobilization. For the average voter, computer-generated requests for donations have replaced the ward boss as the personal face of the party. This is particularly concerning since those most likely to be targeted by such impersonal requests also happen to have relatively high incomes and levels of educational attainment. Political commentator Michael Lind only slightly overstates the case when he writes:

Politicians chosen by membership-based mass parties have been replaced by politicians selected by donors and sold … to voters. At the same time, the decline of neighborhood party machines turning out the vote has resulted in declining participation by lower income and less educated voters. The Americans who do vote are disproportionately affluent.

When millionaires constitute a supermajority of Congress and lawyers are overrepresented in Congress, the interests of lawyers, millionaires, and college-educated white men have more resonance than other interests and experiences. The absence of individuals with more typical experiences of American life–individuals who have never had a white-collar professional job, women who have left their young, school-age children at home with siblings because they cannot afford daycare, or those who regularly navigate the criminal justice or welfare systems–in Congress (and presumably in the social networks of the partisans upon whom members of Congress rely for policy advice) makes it significantly less likely that Congress will prioritize policies addressing the experience of such citizens.

To make matters worse, entrenched socioeconomic segregation means politicians– even ones who gain from church attendance or NRA membership–are much more socially isolated from individuals from different walks of life than they were in the past. Put plainly, if members of Congress and their associates were financially dependent on public education for their children, they might not have been quite as taken aback by the broad bipartisan outrage at Betsy DeVos’s nomination. Equally important, the less government addresses those needs, the more likely those constituents will disengage from electoral politics, and the vicious cycle begins. While few would wish to return to the eras in which political power ran through sex-segregated and racially exclusionary clubs–veterans’ groups, Masonic Lodges, or the Klan–the socioeconomic exclusivity of contemporary partisan networks has had democratic costs.

Social insularity of party elites along with the unrepresentativeness of both voters and party activists affects the types of policies and actions that are considered, even in the absence of corruption or undue influence. Individuals’ experiences of the world shape how they process information, what issues they prioritize, and what issues fall off their radars. A behavioral economist might describe this in terms of the availability heuristic; an anthropologist might describe it in terms of culture and social practice. The bottom line, however, is the same: Social context shapes what one prioritizes (e.g., tax cuts or social security), finds reasonable (e.g., accepting extravagant gifts from donors or engaging in an illicit market to make ends meet), and perceives as being problematic (e.g., what constitutes sexual harassment or racism). No amount of data or polling can compensate for the fact that polls are written by the very elites whose world experiences are increasingly insular.

The associational life of partisan elites inevitably affects responsiveness and accountability. The absence of consideration of this phenomenon by responsible party government theorists can probably be attributed to the fact that through the 1950s, elected officials and party leaders had robust ties to their constituents through membership associations based on socioeconomic status (if not race or gender). Churches, veterans’ groups, and even the Ku Klux Klan in the South were extremely well integrated into the party network.

The optimal partisan network, it follows, is one with both socioeconomic and intergenerational breadth and interpersonal depth. Such a political organization would be more capable of mobilizing voters of all ages through a broad cadre of party activists with ties to a representative electorate. It would be better able to disseminate political information during and between elections.

There is much more to say and more that I have said about why the associational path is not only theoretically optimal but also practically possible. It is also increasingly clear to me that the reintroduction of fusion politics at the state and local level could go a long way to rebuilding our party system in an associational vein. But for now, I will stop.

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Political Parties—A Fresh Look

political parties, third parties

We have a political party that was elected in part because Americans are concerned about the price of groceries. Now that they hold three branches of government, their primary budget goal is to maintain and extend tax breaks that overwhelmingly benefit the very wealthiest in our society. And to pay for it, they are likely to target food assistance and subsidies to health care through Medicaid and Medicare.

While I truly appreciate this blog, most of what is discussed about parties is the same-old, same-old from political science: increase party competition or reform how candidates are selected to achieve a functioning political market. We have been on this train for decades and it has not worked. It is time for fresh ideas and fresh diagnoses of how we got to where we are. In that vein, I wanted to share an excerpt from an article I wrote almost a decade ago, which I happened to be rereading yesterday, and which seems still fitting for this moment.

The puzzle of how to curb the tendency of elected officials to act out of self-interest or at the behest of special interests has plagued the republic since the Founding. Even as the Founders aspired to a republican form of government in which legislators would govern in the public interest, rather than simply vindicate their constituents’ particularized advantages, they fretted over the potential for elected representatives to act out of self-interest or at the behest of special interests. Throughout the ratification debates, for instance, Anti-Federalists raised concerns that the new Constitution would give rise to “a system in which the people would be effectively excluded from the world of public affairs and in which national leaders, only weakly accountable, would have enormous discretion to make law and policy.”

The Constitution’s primary answer to the threat of unaccountable politicians is periodic elections.  Regular elections, it was thought, would guarantee that representatives remained bound to their constituents. The structural features of separation of powers and federalism would provide “auxiliary precautions.”

The shortcomings of elections as instruments for ensuring responsiveness are well known. Among their myriad limitations as vehicles for producing accountability, one has proven particularly intractable: the quality of political participation. Even in a world of competitive districts in which turnout is high and representative, democratic accountability turns on voters having sufficient information to assess the adequacy of representation. Unfortunately, individuals face significant barriers when it comes to monitoring elected officials, and policy ignorance among voters is much more common than is policy knowledge.

Responsible party government pursued an indirect solution to the pervasiveness of voter ignorance. Presenting voters on election day with a choice between clear ideological brands, it hypothesized, would substitute for actual knowledge. Meanwhile, an interest in winning office would incentivize the production of brands responsive to voter preferences.  As in the economic market, political parties would compete to provide the most desirable good, and accountability would follow.

The shortcut proved to be fool’s gold. Merely consuming the political brands manufactured by party elites has not been enough to produce accountability. Despite the increasingly clear choice voters face, the weight of the evidence confirms the Anti-Federalists’ worst fears. At the national level, our leaders are millionaires, “only weakly accountable” to the people, who leverage their enormous policy discretion largely to the advantage of others like themselves. Donors and ideological partisans have become the target audience for party brands, and concern for the preferences of the general electorate is largely coincidental.

What then would happen if one sought to create a system of political accountability the hard way–by seeking to increase informed political participation? The relationship between electoral participation and democratic accountability is certainly complex. 

More to come soon . . . but for the curious . . .

Individual voters may not be capable of monitoring elected officials to hold them accountable, but the same is not necessarily true for organized voters.  It is no accident that federal policy is highly solicitous of the needs of older Americans; they succeed in asserting their interests because they are more politically active and better organized than most Americans.

. . .

New possibilities arise when one resists the urge to overstate the implications of the data supporting voter ignorance. While voter ignorance is certainly pervasive, it need not preclude a path to political accountability in which informed political participation plays a critical role. That route, however, becomes visible only when one puts social ties and membership organizations back into the picture. A substantial body of empirical work supports the hypothesis that intermediary associations, including political parties, can spur political participation and facilitate a two-way street of communication between elites and ordinary citizens [in ways, I would now add, improve policy responsiveness and accountability.]

This is basically why I have become, over the last decade, more interested in third-party politics at the state and local level, and hence the problem of anti-fusion law.

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Bezos Announces New Policy for Washington Post’s Opinion Pages. Orbán Playbook?

Plutocrats United

From the Washington Post:

“Washington Post owner Jeff Bezos said Wednesday that the newspaper’s opinions section would now be focused on “personal liberties and free markets” and won’t publish anything that opposes those ideas.”

For now, it appears that Bezos is not seeking to influence the Post’s reporting, but this does have a chilling similarity to the Orbán playbook, as described in this podcast with Kim Lane Scheppele. A key moment in Hungary’s slide to autocracy was the purchase of major news outlets by wealthy allies of Orbán. The dynamics are obviously different here, but Fox, X, and now the Washington Post.

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NJ Appellate Court Upholds State’s Ban on Fusion Candidacies

third parties,

The New Jersey Appellate Division held that the state’s ban on fusion candidacies does not violate the State Constitution. New Jersey, like other states, prohibits a candidate for public office from appearing on a ballot as the nominee for multiple parties. As elsewhere, New Jersey’s anti-fusion law was passed in the early twentieth century to entrench the major parties’ political power–although the N.J. appellate court appears to have dismissed this history, emphasizing instead its adoption as part of a “broader effort to reform the electoral system” during the Progressive Era. Perhaps unsurprisingly, the court proceeded to uphold the law.

Emphasizing that there was no reason to interpret the N.J. Constitution differently from the U.S. Constitution in this regard, the decision follows the analysis of the widely criticized decision in which the U.S. Supreme Court upheld such laws against a First Amendment challenge, Timmons v. Twin Cities Area New Party, (1997).

The case is part of a larger state court litigation strategy, supported by many scholars, including myself. An appeal is expected.

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“What Comes Next? A Post-Election Discussion”

Uncategorized

Very excited to participate in this virtual event sponsored by the Boston Review next week.

Event Details

A post-election discussion with Boston Review contributors Maurice Mitchell, Lee Drutman, Doran Schrantz, Sam Rosenfeld, Tabatha Abu El-Haj, and Cerin Lindgrensavage. 

Join us for a virtual event with Working Families Party national director Maurice Mitchell, political scientists Lee Drutman and Sam Rosenfeld, political strategist Doran Schrantz, legal scholar Tabatha Abu El-Haj, and political counsel Cerin Lindgrensavage discussing the election, pathologies of the two-party system, voter agency, and possibilities for fusion voting. This event will be moderated by Boston Review coeditor Joshua Cohen.

You can read work by all of our speakers in our recent issue, We Need More Parties. RSVP for an issue-included ticket to read it for just $15 (almost 25% off the cover price).

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“The danger of a narrative”

19th Amendment

Interesting post from Seth Masket on the real-world consequences of suggesting “Harris lost because she’s a woman” without evidence.

“Unless we’re really 100% sure Kamala Harris lost because she was a woman — and that, by extension, the Democratic Party should be wary of ever nominating a woman for president again — we should be extremely reticent to push this argument publicly. . . . It tells women that they shouldn’t run, and it tells party leaders that they shouldn’t nominate women. It affects what the pool of candidates in 2026 and 2028 will look like and which of them can best get party support. It’s not just idle chatter.”

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“Johnson condemns ‘insane’ bomb threats against Democrats”

authoritarian threats in US

Axios: Several Democratic lawmakers received threats on Thanksgiving Day. The threats were signed to suggest they were from “MAGA.” A handful of Republican lawmakers also received threats in the past week.

“This is dangerous and insane behavior,” Johnson said of the bomb threats against Democrats in a post on the social media site X.

“Regardless of what party you belong to, your political opponents are not your enemies. This is not who we are in America,” he added.

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New Article: “A Path to Multiparty Democracy”

ballot access

Nate Ela (Temple Beasley School of Law) has posted a new article in relation to the state constitutional challenges to anti-fusion laws that are currently underway. Building on the work of Jessica Bulman-Pozen and Miriam Seifter, Ela argues that many state constitutions distinctly favor popular sovereignty and small-d democracy in ways that counsel for applying strict scrutiny, rather than the interest-balancing approach used in the federal courts when assessing the constitutionality of bans on fusion candidacies. Ela also seeks to remind state courts that they are not constrained by the federalism concerns that drive the U.S. Supreme Court’s reluctance to strike down state election laws.

Ela’s is a very timely intervention not only because the Appellate Division of the Superior Court of NJ will hear oral arguments in the first of these challenges on December 10, but also because, as our two-party system has become polarized and vulnerable to authoritarianism, it is critical to consider structural reforms with the capacity to address the dissatisfaction that drives many voters, including those that reject both parties. Arizona and Nevada, for example, have roughly as many independents as registered Democrats and Republicans. Fusion offers an eminently feasible reform for bringing such voters into the democratic fold in a productive way. Let’s hope that state court judges recognize that they do not need to follow Timmons v. Twin Cities Area New Party (1997), which has been almost uniformly criticized by legal academics and which completely misunderstood the burdens fusion places on parties as organizations and associations.

From the abstract:

“By barring candidates from accepting the nomination of more than one party, anti-fusion laws violate a range of state constitutional provisions: the grounding of government in popular sovereignty; the right to vote; the right to free, equal, and open elections; the right to assemble, consult for the common good, and instruct elected representatives; and the freedom of political association. Rather than adopting the deferential approach of Timmons, state courts should rigorously and realistically review the true burdens of anti-fusion laws, and the actual, partisan interests they serve.”

Part II of the Article is particularly interesting. Among other things, Ela argues that the correct baseline for assessing the burdens of anti-fusion laws is the system that existed before fusion was banned–a system in which minor parties could name their standard bearers, present themselves to voters on that basis, and use their vote share to demonstrate support and exert influence over policymaking. The question, he argues, should be: How have anti-fusion laws undermined third parties in such efforts?

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 “Republican and Democratic Former Senate Counsels Agree: F.B.I. Checks on Trump Nominees Are a Must”

authoritarian threats in US

Noah Bookbinder (former counsel for Democrats on the Senate Judiciary Committee) and Gregg Nunziata (formerly counsel for Republicans on the committee and chief nominations counsel beginning in 2006) in a Guest Essay at the New York Times:

“Efforts to bypass F.B.I. background checks and even Senate confirmation itself via mass recess appointments, made by the president when the Senate is not in session, never would have flown with past iterations of the Judiciary Committee, regardless of which party was in charge. The Senate shouldn’t stand for it now.

. . . Americans may disagree about the policy agenda set by a president and enacted by his executive branch appointees, but the Senate must perform its constitutional duty to ensure that president’s nominees understand their obligations under the law and possess the character and fitness to perform their duties. That means, among other things, understanding their duty to the law and the Constitution.”

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“Trump signs transition agreement with Biden, but it lacks key guardrails”

authoritarian threats in US

Washington Post: “The agreement clears the way for Trump-appointed ‘landing teams’ to start entering government offices to receive briefings from career staff about the operations of hundreds of federal agencies, a ritual of presidential transitions.” Security clearances remain a sticking point:

“Trump’s transition team has not signed a memorandum of understanding with the Justice Department, for instance, that would allow the agency to conduct background checks and intensive reviews for the security clearances that many of Trump’s landing teams need for the Biden administration to legally share classified intelligence and national defense briefings. The briefings will only be given to Trump transition officials who have a proper security clearance and have signed a nondisclosure agreement, according to the White House.”

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“Ranked-choice voting continues to work in Alaska. It would everywhere else, too.”

alternative voting systems, primaries

Washington Post’s Editorial Board comes out in favor of RCV, arguing it is working well in both Alaska and Maine to select more moderate candidates that are more likely to reflect the preferences of electoral majorities, and that it is not confusing:

“Ranked-choice voting continues to work in Alaska. It would everywhere else, too.”Apart from accusations that it favors Democrats, which haven’t been borne out, the biggest knock on RCV is that it’s too confusing for people to rank candidates. But studies show that virtually all ballots cast in RCV elections are valid, with error rates similar to those of traditional elections. Usually, after trying it once, people become more comfortable with ranking candidates when they realize that they don’t need to vote strategically, worrying about throwing away their vote by supporting as their first choice someone who is unlikely to win.”

I do wonder how well RCV would transfer to larger, less rural states. Alaska and Maine are certainly not representative, and neither is subject to the same national forces as, say, Pennsylvania.

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Governor Cooper Vetos Bill that Would Shift Power from Executive Offices (soon to be held by Democrats)

chicanery

Raleigh News & Observer reports that Governor Cooper has temporarily halted efforts by the Republican legislature to restructure power in North Carolina to limit the impact of Democratic wins in the state. Republicans have repeatedly overridden Cooper’s vetos during this session, but speculation is that they do not have the votes this time.

NON-HELENE MEASURES IN BILL

  • “Significantly reduce the amount of time voters are given to fix issues with their provisional ballots and require counties to finish counting all provisional ballots on the third day after Election Day, a process that took nearly two weeks this year.
  • Make the the State Highway Patrol into a standalone department, rather than a subset of the N.C. Department of Public Safety, and require the governor’s choice for Highway Patrol commander to be approved by lawmakers.
  • Eliminate the positions of two Superior Court judges after their terms expire, including a Democrat who threw out two amendments to the North Carolina Constitution that voters approved in 2018 — one on voter ID and another to cap the state income tax rate.
  • Require the governor to fill any vacancies on the state Supreme Court and Court of Appeals from a list of people recommended by the leaving judge’s political party.
  • Allow donations from corporations, business entities and labor unions to be used to fund legal actions for political parties. Shift control of the state Utilities Commission away from the governor.
  • Require an extra step before the attorney general’s office can intervene in matters before the Utilities Commission, such as cases over how much Duke Energy’s utilities can charge for electricity.
  • Prevent incoming State Superintendent of Public Instruction Mo Green, a Democrat, from appealing decisions made by the N.C. Charter School Review Board.”

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Governing Likely to Be in Short Supply Come January

election subversion risk, political polarization

The 119th Congress is highly unlikely to be able to deliver effective government. Politico Playbook projects, “House Republicans are facing roughly two months with a 217-215 split — a one-seat majority.”

“The math … If the current leads hold, the final 2024 House tally would be 220-215 in favor of Republicans — a net gain of two seats for Democrats. But the GOP will immediately start the 119th Congress down a seat due to MATT GAETZ’s resignation, with Reps. ELISE STEFANIK (R-N.Y.) and MICHAEL WALTZ (R-Fla.) expected to step down later in January.” 

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