By RICHARD L. HASEN
Review of DEMOCRACY MORE OR LESS: America’s Political Reform Quandary, by Bruce E. Cain
Cambridge University Press, 2015
Modern American democracy is often messy, increasingly polarized, sometimes stupefying, and surprisingly decentralized. Our Congress functions (or doesn’t) mainly along party lines under rules set in a Constitution more than 200 years old which does not recognize political parties, and indeed was designed to stifle their emergence. Divided government in times of polarized parties has undermined accountability as each side can blame the other for policy failures, and we lurch from one potential government shutdown to another thanks in part to polarization and in part to internal fighting within the Republican Party. Much power devolves to the state and local level, where we often see one-party rule rather than the partisan stalemate of Congress.
State one-partyism extends even to the rules for conducting elections, where a majority of states use partisan election officials to set the rules of the game and to carry out our elections, and where state legislatures draw their own legislative districts only mildly constrained by Supreme Court one-person, one-vote requirements. Our campaign finance system is careening toward deregulation, with a series of Supreme Court decisions and partially enforceable congressional measures leading to the creation of political organizations, some of which can shield their donors’ identities, allowing the wealthiest of Americans to translate their vast economic power into political power. Money spent to influence elections is complemented by money spent to influence public policy through lobbying, creating a system in which those with great wealth and organizational ability have a much better chance of having their preferences enacted in law and having their preferred candidates elected, than average Americans have.
It is no wonder that the reform impulse in American politics is strong. States with the initiative process have experimented with top-two primaries in which the top two vote getters, regardless of party, go to a runoff, and redistricting reform featuring either citizen commissions or substantive limits on legislative self-dealing. The National Popular Vote movement seeks an end run around the antiquated rules of the Electoral College, which violate modern accepted principles of one-person, one-vote by giving small states outsized power relative to their populations.
Reformers push a constitutional amendment to overturn the Supreme Court’s decision in Citizens United and other cases which hamstring the government’s ability to control money in politics. Good government groups regularly clamor for redistricting reform (often joined by the political party on the losing side of redistricting in each state), expansion of voting rights for former felons and others, and the end of corruption and patronage. Some even call for constitutional conventions with citizen participants chosen by lottery.
But as Bruce Cain argues in his terrific new book, the never-ending efforts at reform present tradeoffs, and attempts to achieve either pure majoritarianism or government meritocracy can have unintended and unwanted consequences. Further, many reform efforts are oversold as a cure for all that ails American democracy. Cain argues for a Goldilocks-like pluralist reform agenda which recognizes that busy citizens lack interest in governing and capacity to make complex decisions. Instead, politics is conducted through intermediaries across the range of local, state, and national governing arenas. Pluralism “prioritizes aggregation, consensus, and fluid coalitions as a means of good democratic governance.” (p. 11)
Cain presents his pluralism as the midway point between an unrestrained impulse toward populism, which fails to recognize lack of average citizen capacity and interest, and apolitical meritocracy, which fails to recognize that responsive politics requires play in the joints. Ultimately, however, Cain embraces an egalitarian pluralism (which he calls “blended” “neopluralism”) that accepts much of the egalitarian and populist reform agenda which he sets up as one of his foils.
Cain is Able
Cain does a masterful job explaining modern American democracy and much of the folly of reform. Cain, a professor at Stanford (but who spent much of his career at the University of California at Berkeley and its excellent Institute for Governmental Studies), is the bridge between political scientists on the one hand, and lawyers, policymakers, and think tanks on the other. He is able to cull and explain the key points in the increasingly formalized and jargon-laden political science and election law literatures to present the relevant data and arguments to a reader with no formal training.
Much of the book focuses on misguided reforms begun with good intentions but ending in folly. Cain discusses how open meetings laws popular on the local level can prevent the space and privacy needed for negotiating delicate compromises which can keep the wheels of government turning and various interests accommodated in a fair way. He describes how California Governor Jerry Brown, when he was elected as mayor of Oakland, was initially unable to participate in a development plan to revitalize West Oakland, despite campaigning on making the plan a reality. State regulators had concluded Brown had a conflict of interest, because he owned a condominium in the area under development, and Brown had to go to court to reverse the ruling. Cain points out the irony that the conflict of interest rules which blocked Brown resulted from Brown’s earlier efforts at reform, during his first stint as governor, when he signed the bill creating the regulators and conflict of interest rules.
Cain nicely situates the current debates about reform in historical context. The current crop of reform proposals follows democratization of the presidential nomination process begun in the 1960s, moving the process of choosing candidates from the smoke-filled room to the ballot box. And the changes in primaries and redistricting via voter initiative build on earlier progressive era changes to establish direct democracy in the West and elsewhere, as well as a series of constitutional amendments to enfranchise African Americans, women, D.C. residents (as to the presidency), and 18-to-21 year-olds.
On rare occasions, Cain goes too far in critiquing reform efforts. He describes discussions surrounding passage of the 2002 Bipartisan Campaign Reform Act (more commonly known as the “McCain-Feingold law” for its two principal Senate sponsors), pointing out that he and the late great Berkeley political scientist Nelson Polsby warned reformers that putting limits on party contributions would empower independent individuals and donors. Cain’s point seems to be that today’s era of Super PACs was inevitable once Congress put McCain-Feingold in place.
Yet at the time the law passed, contributions to independent groups were capped at $5,000, and it took a Supreme Court reversal of precedent in the Citizens United case, and action in both lower federal courts and the Federal Election Commission to blow the lid off those limits and lead to the emergence of super PACs. None of this was inevitable when Congress passed McCain-Feingold. At that time, a majority of the Supreme Court was willing to uphold just about any campaign finance rule challenged as a First Amendment violation. All of that changed with the retirement of Justice Sandra Day O’Connor and her replacement with Justice Samuel Alito.
Further, Cain’s criticism goes too far because it fails to recognize the significant barriers faced by reformers in the United States. They must propose reforms consistent not only with political realities but also with the current Supreme Court’s views of the Constitution. Thanks to the 1976 Buckley v. Valeo case, which struck down the spending limits in the 1974 amendments to the Federal Election Campaign Act, the full-scale reform Congress enacted never got put into place, and thus every reform measure since then has been a half-measure at best. The real question is whether partial reform is better than none, and on that point reasonable people can disagree.
Despite these occasional missteps, Cain’s critique of the reform effort is much more tempered than that of Jonathan Rauch, who longs for the return of the smoke-filled room, or of Rick Pildes, who laments what he terms the “democratic romanticism” of many in the reform camp. As Tom Mann and E.J. Dionne persuasively argue, the good old days which the “new political realists” pine for were not so good, whether measured in terms of political equality or government efficiency: it took way too much grease to grease the wheels in the old days.
A Kinder, Gentler Pluralism
When it comes to his agenda for reform, Cain is an egalitarian populist, ending up much closer to the populist position than he himself recognizes.
Cain favors electoral college reform, calling the college “a ticking time bomb that allows a minority of voters to control the most powerful government position in America — a violation of the basic principle of majority rule.” (p. 215) While he does not endorse nonpartisanship or citizen commissions for redistricting, an issue which he is more content to leave to the pulling, hauling and trading of the political process, he is an emphatic believer in nonpartisan election administration. The government may be an arena in which parties and interest groups compete for power, but those counting the votes and running elections should have their allegiance to the integrity of the process, not to a political party, and the goal should be to make exercising the franchise easy and convenient. He also believes the courts should become more active in using Bush v. Gore-type equal protection principles to force greater uniformity and non-partisanship in the conduct of elections.
On the crucial issue of money in politics, he believes that the wealthy and well-organized have distinctive, systemic advantages in politics and policymaking, thanks to both campaign finance spending and investments in lobbying. He writes: “Even if we solve the ‘corruption’ problems inherent in revolving-door exchanges between the private and public sectors, the US system allows the wealthy ample advantages for access and influence through its campaign finance laws and lobbying channels. If these activities matter, then they can cause democratic distortion in either the populist or pluralist sense, biasing results toward the few and obstructing policies for the many.” (p. 138)
This inequality is magnified by lack of citizen capacity: “the Achilles heel for democracy is not the decisions that attract public attention but the accumulation of many smaller decisions that are either not as salient or where the combined effects of public decisions over time cannot be foreseen at the time the public weighs in.” (p. 142)
Cain accepts so much of the reform agenda one wonders by the end of the book whether his vision of politics would differ in significant ways from those of the reformers he criticizes. It seems clear that Cain would leave much redistricting in the hands of politicians so long as citizens can give meaningful input, and he would allow for at least some uses of political patronage in an effort to keep political parties strong. He wants fewer and less frequent elections. He would cut back on the disclosure of campaign finance information, advocating what he terms “semi-disclosure” in many instances: generic information about the background or industry of contributors rather than their actual identies. Cain favors semi-disclosure because he believes full disclosure deters, and is intended by reformers to deter, certain election-related spending by certain actors. Parties would have more flexibility in nomination process, and regional governments would have the ability to deviate from the one person, one vote principle to achieve federalist-like regional compromise on governance.
In the end, though, Cain’s endorsement of campaign finance vouchers is a sure giveaway of his egalitarian impulses. I have long been a proponent of campaign finance vouchers and I’m not alone. They have been favored by Bruce Ackerman and Ian Ayres, and more recently by Larry Lessig, with all of us advocating vouchers on grounds of equality, or at least preventing the wealthiest Americans from having too much influence over the political process. They fund various types of intermediaries, including political parties, based upon their popularity and voters’ intensity of preference. Cain would consider going further, and offer vouchers for citizen-oriented lobbying to overcome the collective action problems associated with representing diffuse interests. “A voucher system could theoretically encourage better ties between voters and lobbyists, because there would be a competition for voucher dollars. This could lessen the gulf between the electoral mandate and the lobbying industry influence.” (p. 212)
Rick Pildes, in his recent Yale Law Journal article on what he terms “democratic romanticism,” goes after vouchers as a kind of Pollyannaish solution to the country’s problems, and one which will only exacerbate polarization by funding more extreme politics. What Cain recognizes and Pildes does not, however, is that vouchers can work to moderate politics, by causing the funding of a variety of interests and political, including those interests in the center of the polity, which can compete with one another. As Tom Mann and Tony Corrado argue, the current donor class is plenty polarized, and there is no good reason to think things would get more polarized if we gave incentives to all voters, including those less motivated on the political fringes, to make decisions about funding U.S politics. But they certainly would be a lot more egalitarian.
Cain offers what we might term “democracy for grownups.” It is easy to emphasize the “grownup” part of that equation, and the rejection of simplistic and sometimes counterproductive reform measures which sometimes gain traction. However, there is a “democracy” component too, and when we look at Cain’s visions of how to improve American democracy, it is a vision of a more egalitarian United States, one which should make thoughtful populists rally around him and his fine book.
Posted on 9 November 2015
RICHARD L. HASEN is Chancellor's Professor of Law and Political Science at University of California, Irvine School of Law and author of the Election Law Blog. He is the author of the forthcoming book, "Plutocrats United: Campaign Money, the Supreme Court and the Distortion of American Elections."