Sunday, November 28, 2004

Post by Nate Persily

For much of the second half of the 20th century political scientists criticized the American party system and the institutional architecture of the Congress for being "unresponsive." The "Responsible Party Government" theorists viewed the two big-tent political parties as dedicated to blurring their differences rather than offering authentic choices, and they saw Congress as an unwieldy collection of fiefdoms, rather than the Westminster-style of coherent hierarchical party rule that these theorists envied. Due in part to the reforms that school promoted as well as demographic and political changes they could not have countenanced, we now have a level of "responsible" party government that places enormous strains on the basic design of government the Constitution sets forth. For those of us who study the "Law of Democracy" THE question concerning the Constitution in 2020 is: How can we achieve representative government and competitive politics given the dramatic political, demographic and institutional changes that have gained momentum over the past ten years?

The dual threat to representation and competition comes from a party system that has polarized at the elite level and an erosion of norms that previously constrained partisan greed and manipulation of the rules of the game. The challenge for architects of institutional solutions or new constitutional rules in most of the relevant election law contexts (e.g., redistricting, election administration, voting rights), then, is to constrain the choices available to partisan actors and to increase the distance between such actors and those in charge of the processes that might lead to their replacement. A judiciary-focused reform agenda would promote interpretations of the First and Fourteenth Amendments that treat partisan motives as inherently suspect. As with the patronage cases, for example, which erected a First Amendment bar applied to low-level hiring, firing or independent contracting based purely on partisan motives, so too should decisions to punish voters or other officeholders based solely on partisan interests receive similar constitutional treatment. At the same time, an agenda of institutional reform would consist of a variety of measures designed to foster nonpartisan electoral administration.

I would be a very cautious advocate of both strategies, as neither comes without serous potential risks to the values they hope to further. Judicial intervention into this type of partisan politics comes with real costs and might very well do more harm than good, depending on oneís estimation of how current members of the judiciary would implement such rules. And our experience with the attempted creation of nonpartisan overseers of American politics (cf. the Independent Counsel) demonstrates how difficult and counterproductive the task of creating political insulation and independence can be. Much could be gained, I think, from an analysis of best practices of such bodies at the state level (e.g., the California Fair Political Practices Commission, the Iowa Legislative Services Counsel), as well as those of other countries (boundary commissions in Canada, Australia, and the U.K.).

The challenges to creating more accurate representation are even more daunting. Many blame incumbent-protecting or bipartisan gerrymanders for the polarization in the House of Representatives and state legislatures, and would urge aggressive judicial review of such plans as a remedy. There is something to that story, but a similar rise in polarization in the unredistricted U.S. Senate suggests institutional changes and leadership pressures within the Congress and the parties shoulder much of the blame. Insofar as districting has led to a rise in polarization, moreover, I can say from experience (as well as a marvelous study by the Austin-American Statesman over the past year) that the increasing political segregation of voters -- not between red and blue states but between red rural areas and blue cities -- makes the creation of competitive/politically balanced districts (let alone ones where minorities have an equal opportunity to elect their candidates of choice) very difficult. (Incidentally, increasing political segregation poses all sorts of interesting, constitutionally relevant problems worth exploring.) If the historic moderating pressures of the median voter in a single-member district system no longer provide the necessary constraints given the current institutional and demographic environment, then what is to be done? One possibility is to experiment with alternative forms of representation at the state level and to repeal the statute that requires single-member districts for Congress -- not exactly a politically popular solution. I would be eager to hear others' thoughts on this.