The Institutional Turn in Budget Politics and Election Law
posted by Michael Kang
Thanks so much to Danielle, Dan, and their co-bloggers for inviting me to visit for the month of August. I start my guest stint at Concurring Opinions by writing a bit about an interesting proposal by Chris Elmendorf and Ethan Lieb for breaking state budget stalemates that appeared in the New York Times op-ed page last week. Elmendorf and Lieb point out that California’s embarrassing budget stalemate, during which the state of California was forced to issue IOUs, threatens to become a yearly ritual during the economic downturn. They propose “[i]f the Legislature and the governor fail to adopt a budget four weeks before the deadline for the new fiscal year, a group of randomly selected citizens – one from each legislative district – would be convened to resolve the stalemate.” This citizen’s assembly would be presented with proposed budgets from the governor and each party’s legislative caucus, hear arguments from interested experts and groups for two weeks about each proposal, and choose one of the proposed budgets, which then would become law.
The idea is not only creative and promising, but representative of a larger movement toward institutional solutions in election law that I discuss in a recent book review of Heather Gerken’s The Democracy Index. Increasingly, election law reform is turning to the creation of new political institutions that seek not to deny politics or remove politics from lawmaking, but to channel lawmaking in healthier directions by restructuring leadership incentives more closely with the public interest. The Democracy Index, the subject of Heather’s book, is one such institutional solution. It would aggregate data about election administration into an ordinal ranking of state performance that might make an otherwise arcane subject more accessible to voters. Another institutional solution is my own proposal for gerrymandering reform, which would place competing districting maps prepared by the parties on the ballot for public selection. The hope is that inducing electoral competition between the major political parties pushes both sides toward fairer proposals that appeal to the median voter in what would be a public and avowedly political process. Elmendorf and Lieb’s idea is in this same family of institutional solutions.
Heather and I are working on a new project that identifies, assesses, and ultimately advocates this “institutional turn” in election law with much greater elaboration than I could offer in my short book review (or this post). We think this institutional turn is characterized by at least three important qualities. First, institutional solutions by their nature do not look to courts as neutral regulators of politics who can impose fairness from outside the political process. Second, institutional solutions attempt to harness politics to fix politics. They try to restructure political processes to channel competition among leaders in the direction of the public good. Third, institutional solutions generally enlist popular participation in creative ways and engage the public with central questions of election law, to the extent feasible. Each of these qualities is clear in Elmendorf and Lieb’s proposal, which embodies, at least in my view, exactly the right normative instincts emerging in election law.
August 3, 2009 at 9:37 am
Posted in: Book Reviews, Constitutional Law, Current Events, Politics
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Responses (3)
A.W. - August 3, 2009 at 9:52 am
a simpler approach is this.
if a state goes 10% over budget, then it must either come up with the savings, or an automatic, across the board cut kicks in.
and if not, why not?
Danielle Citron - August 3, 2009 at 10:42 am
Your project sounds so interesting, one that would harness the expertise of the interested public. I imagine that your harnessing politics to fix politics approach will confront problems of cronyism and special interests, and I look forward to learning of ways in which your proposal can mute those problems. Election administration seems particularly vulnerable to both, at least in terms of the purchase of evoting systems. Given your terrific work, I know that you reach far beyond evoting systems and so I really look forward to hearing more about your project. Danielle
Just took the bar - August 3, 2009 at 11:53 am
Prof. Kang
Jurors face well-known epistemic and cognitive hurdles when making decisions.
A panel of randomly selected legislators appears similar to a jury.
Questions: Would a panel of citizen legislators face similar cognitive and epistemic hurdles; and if so, how are they overcome?
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