Monthly Archives: October 2005

Jim Gardner on Public Office

James Gardner has posted Giving the Gift of Public Office on SSRN. The abstract:

    This interpretive essay, written for the Buffalo Law Review’s annual essay issue, identifies an increasingly common pathology of American democracy in which voters treat the election of public officials not as an instrumental act designed to influence public policy, but as an opportunity to present public office as a gift to those who have pleased, entertained, or moved them. The reelection of Strom Thurmond to the Senate at age 93 and the election of nearly forty congressional widows to their late husbands’ seats exemplify this trend. Although this behavior bears a passing resemblance to eighteenth-century habits of political deference and nineteenth-century understandings of politics as a form of public entertainment, judged by contemporary norms of democratic citizenship it is a corrosive kind of civic corruption akin to patronage. As with efforts to eliminate other forms of patronage, only substantial institutional reforms seem capable of neutralizing this destructive behavior. Such reforms might include moving to a party list system, or creating new figurehead offices, like the presidency in a parliamentary form of government.

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Jacobson and McCormick on Posner

Arthur Jacobson and John McCormick have posted The Business of Democracy is Democracy on SSRN. The abstract:

    In Law, Pragmatism, and Democracy (Harvard University Press, 2004), Richard Posner champions the work of the Austrian economist, Joseph Schumpeter, who distilled the democratic process down to the election of political officials from among a group of competing elites by the general population. He links this “pragmatic” account of democracy to a broader program of pragmatic adjudication and liberalism. This review critically assesses the empirical and normative grounds of Posner’s argument, and accuses him of neglecting the pivotal role of politics, in both his democratic theory and his understanding of pragmatism.

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Why Alito Likely Won’t Be Confirmed: The Future of the Senate, and the Supreme Court, Rests with the Gang of 14

As I predicted, President Bush has nominated a strong conservative to replace the failed nomination of Harriet Miers. We now have the battle that liberal and conservative interest groups have been anticipating ever since President Bush promised a Supreme Court nominee in the Scalia-Thomas mold.
It all comes down now to the 14 Senators who made a deal to prevent the triggering of the “nuclear option” in the Senate, and the politics of abortion. This is a high stakes game for those 14 Senators. Risk the wrath of the right (if you are a moderate Democrat) or the wrath of the left (if you are a moderate Republican).
I am ready to make my next prediction: Judge Alito will not be confirmed, because Democrats will threaten to use the filibuster for a nominee they will strongly paint as anti-choice. Moderate Republicans, such as Olympia Snowe, won’t vote to trigger the nuclear option, and Judge Alito will not get a vote on the floor of the Senate. My level of confidence in this prediction: not high. With the stakes this high, the triggering of the nuclear option is very much in play, and the decline of the Senate as a deliberative institution is clearly in sight. (For background on how the nuclear option will change the nature of the Senate, see my Roll Call oped from April 25).

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“Spending Big at the Ballot Box to Build”

The Los Angeles Times offers this very interesting report, which begins: “LIVERMORE, Calif. — A housing developer here in the Bay Area’s bastion of slow growth is on track to spend nearly $68 per registered voter to pass a ballot measure that would expand the city’s boundaries and add 2,450 new homes along one of Northern California’s most congested highways. By the time election day dawns Nov. 8, Pardee Homes is expected to have spent more than $3 million to convince just 43,598 registered voters that the company should be allowed to develop 1,400 acres of golden grassland surrounded by rolling hills off busy Interstate 580.”

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“Say No to Online Soft-Money Loophole”

Trevor Potter has this Roll Call oped (paid subscription required (or here, without a subscription). A snippet: “These reform opponents presumably believe it would serve their interests if the Internet became an outlet for the same soft money that virtually drowned out the modest contributions of average citizens in the 1980s and 1990s, and that Congress banned in 2002. So they are trying to argue that a movement is afoot to ‘regulate grass-roots activity’ in order to stop any regulation of the way state parties, corporations and unions finance federal political activities that take place online. If they are successful, they will have opened an Internet loophole through which soft money can once again flow freely.”

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“A First Test for BCRA Penalties”

Roll Call offers this report (paid subscription required), which begins: “An indictment was handed down last week in a case that could send an individual to jail for the first time under the stepped-up penalties for violations under the 2002 Bipartisan Campaign Reform Act. Tom Noe, a ‘Pioneer’ for President Bush’s 2004 re-election campaign, was charged last week with illegally funneling $45,400 to Bush’s re-election campaign by using two dozen people as “conduits” for illegal contributions.”

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