Since I’m blogging this week, I want to expand the discussion here a bit from election law, narrowly conceived, to democratic governance more broadly.

I have argued since pretty much the start of my career that scholars of “election law” should focus not just on the policies and doctrines concerning the way elections are conducted, but on how the general institutional framework within which democratic politics takes place shapes the kind of governance we get at the end of the day. The point of elections is partly to ensure government rests on the consent of the governed, through free and fair elections, but it is also to empower a government capable of delivering effective government. Democracy is an important reflection of the principle of political equality, but it must also deliver the goods if it is to maintain widespread citizen legitimacy and support. Early in our careers, Sam Issacharoff and I wrote a little essay, “Not By Election Law Alone,” to flag the point, and I’ve recently been drilling down more deeply on this point, eg, in The Neglected Value of Effective Government and Political Measures to Combat Extremism.

I mention that as a prelude to excerpting this important recent interview Ezra Klein did with Hawaii Senator Brian Schatz. The piece is fascinating, because it reflects the evolving views of a progressive Senator who has come to recognize that one of the major failures of current American government — the homelessness problem — is partly a result of excessive political participation requirements that were created in the 1960s and 1970s but that have become major reasons it has become so difficult to build new housing. There’s also a direct link between the participatory rights elections provides and the ideology of democratic participatory rights behind the measures Sen. Schatz now criticizes. As scholars of administrative law have noted, these rights were designed to turn administrative processes into mini-democratic forums. The whole interview is fascinating, here are a couple excerpts:

We have created the scarcity on purpose. We have elevated something called community engagement, but it’s not actually objectively community engagement. It’s the ability for a few people who already have homes to hijack the whole process above the needs of the many. We’re actually making it nearly impossible for people to build anything.

And I think the premise here is that we can have nice things. We can have enough of the things that we want. If you operate under the assumption that there will only be 100 homes built, it is not unreasonable to say, “Well, listen, I want 35 of the 100 homes to be capital-A affordable.” That’s a totally reasonable, progressive approach. But the truth is, if you require that, it’s likely that zero homes will be built and nobody gets any housing….

My district, when I was in the State Legislature, was Makiki, Manoa, sort of by Punahou School, by the University of Hawaii — a very nice, beautiful suburb. And those are some of the folks that are most worried about what a deregulatory environment would look like, in terms of their neighborhood.

So after the Hawaii Legislature passed some aggressive housing reforms this session — and I’m strongly behind it — I was at Safeway, and I was running into people who contributed to my first campaign with 15 bucks, people with whom I went to high school, and they were not happy.

I don’t think it’s unforgivable, but this is an uncomfortable conversation among friends. And that’s one of the things that I think the progressive movement has to grapple with, that there are a lot of communities that are 70-30 or 80-20 Biden and are pro-immigrant and pro-L.G.B.T.Q. and certainly pro-choice and pro-climate action. And on housing they’re [expletive]. And I don’t think that can stand….

I think the constituency for proceduralism is small but vocal. And it’s not that there should be zero public input. When it comes to housing in the state of Hawaii, we have extraordinary protections for natural and cultural resources, as we should….But I actually think you can kind of puncture it by talking to regular people and then finding out that the proceduralists are, like, 11 people who just consistently show up….

I think about the state historic preservation division of the state of Hawaii. The federal law says that you may consider something historic if it meets these criteria in the state of Hawaii. The assumption is everything more than 50 years old is historic. Now, the problem is we just have old houses. And so now they’re all potentially for state historic preservation division review. And so for four years, everyone was like, “We’ve got to get more bodies over there so they can process more applications.” And I sort of raised my hand and said there should just be fewer things on these people’s pile.

We have to clear the thicket here, and we have to be unapologetic about clearing the thicket. And by the way, this is really good for results, but it also is quite attractive to moderate swingy voters who just want government to kick ass and accomplish things. And they’re really looking for an effective mayor of the country.