Heather Gerken is on to something important . . . that goes well beyond election law and enlightens the general predicament of progressive legal scholarship today. Quite simply, we’ve lost the federal courts for a decade, and maybe longer, so who precisely is our audience?
Presidents and governors, Congresses and legislatures, and agencies and NGOs-- when progressives manage to gain the upper hand. And, more broadly, ordinary citizens.
But to make sense to these audiences, we must better understand their distinctive interests and modes of understanding. Whatever you might think of federal judges, our new audience . . . [is] often interested in the public good. To be sure, professional politicians will turn away if policy prescriptions are plainly inconsistent with their interest in reelection, but there are lots of reforms that are in the grey zone where the merits matter. And, of course, Gerken is right to insist that politicians pay a lot more attention if a policy initiative can somehow penetrate the fog that surrounds their constituents, who generally don't have much of a clue about what’s going on.
So what’s a poor legal-policy wonk to do? How is he going to grab the attention, of his new audiences?
This is a general problem-- ask any tax lawyer or environmental lawyer or intellectual property guru.
As someone who sees himself very much as a progressive legal scholar and legal-policy wonk, this is huge. It is hard enough to decide what is good policy, and it is harder still to secure the power needed to make it into law.
After you spend a sufficient amount of time in the pseudo-utopian world of trying to make sense of what is good public policy, you start waking up to the fact that many of approaches that this mode of thinking leads you naturally into, like proposals for amendments to the United States Constitutions, or bold, theoretically pure liberal legislation, is a theoretical dead end in the sort to medium term.
Gay rights activists, for example, have known since the Stonewall riots in 1969, that passing laws banning employment discrimination on the basis of sexual orientation was the right thing to do. This is been clearly the right thing to do as a matter of public policy in the larger realm of legal-wonkdom since, at least, the mid-1980s. Colorado only finally got around to making this law in 2007, however, and achieving this at the national level is still on the "to do" list, and we continue to this day to discharge gay soldiers from the U.S. military, right in the middle of conducting two regional wars in Iraq and Afghanistan respectively.
Alas, Ackerman's suggestions, as well as those of Gerken, to whom he is reacting, are less inspiring than their joint identification of the problem.
Gerken's construct of the conflicts within the progressive movement are also on target:
[T]he structure of the reform process determines what kind of reform gets passed. Or, in the case of the United States, the structure of the reform process means almost nothing gets passed. Rather than continuing to fight reform battles on this hostile turf, we should focus on changing the underlying terrain.
The most effective way to change the terrain, in my view, is to blend ideas from the two major intellectual camps in my field. On one side are the participatory democrats, who favor bottom-up, grass-roots reform. On the other side are the competitive democrats, who subscribe to an elite-centered vision of politics and chide the participatory theorists for ignoring the role that power and elite incentives play in shaping electoral politics.
If we want to create a virtuous cycle for reform, we must combine elements of these two theories. We should take advantage of the many ways in which political elites generate political energy -- serve as "conversational entrepreneurs," to use Robert Bennett’s term -- and redirect that energy into a conversation about reform. And we should make it easier for citizens to take part in that conversation. As I noted yesterday, these two strategies are mutually reinforcing. If partisan self-interest is redirected toward reform, political entrepreneurs have an incentive to find new ways to frame, and draw citizens into, reform debates. If citizens become more engaged in reform debates, political elites will have more incentive to care about reform.
As in many things, of the two groups of "lowercase d" democrats described above, I am inclined to think that Joseph Schumpeter, who is the central intellectual figure among the "competitive democrats" is closer to the mark than his opponents.
I am, for example, deeply impressed by the extent to which supposedly participatory democratic institution, like the citizen initiative and the caucus process, are dominanted by political elites. I am also impressed by the degree to which public protest is an ineffective means of bringing about political change absent the most extreme circumstances.
I worry about pure grass roots reform efforts not only because they often don't work as advertised. I also distrust grass roots effort at specific legal reforms in fairly obscure areas, because, while the grass roots are good at knowing that the system is broken, the man on the street is far less adept at proposing thoughtful solutions to those problem that will actually work. Uninformed intuition is often a poor guide to predicting the impact that specific legal reforms will produce.
The most recent case in point is Amendment 41 in Colorado. Amendment 41 was widely supported by Colorado voters in 2006 who agreed that its basic premise that it is constitutional and proper and desirable to remove opportunities to secure private personal gain from political office, was sound. But, because it was drafted in an overly expansive and ham handed manner, it has fiercely divided people of good will with similar political values, and has become a political liability, rather than a political triumph for reform. The fact that even many relatively sophisticated political players failed to see the flaws in how it was drafted illustrates the perils of relying on the grass roots to implement specific political changes.
Instead, my credo of tactics includes some of the following:
1. Secure reform by the most innocuous means possible. Don't use a constitutional amendment when an executive order or change in regulation or local ordinance will do.
2. In times of divided government, focus on reform in areas with weak partisan implications; in times of partisan control, focus on reform in areas where there is widespread consensus within the ruling party.
3. Approach problems in ways that reduce the importance of hostile institutions. If the courts are hostile, find non-legal solutions; it the federal government is hostile, fine state and local solutions; if state and local government is hostile, find federal solutions; if government is hostile, find private solutions.
4. Involve multiple people with deep policy expertise in the nitty gritty of preparing detailed reform measures.
5. Use generalized discontent to public policy failures as a impetus to develop groups of informed laypeople and experts to suggest specific reforms and provide a theoretical explanation for what is wrong with the status quo.
6. Educate politicians regarding policy issues sufficiently to allow them to artfully articulate calls for reform as political issues.