David Schleicher

What if Europe held an election and No One Cared

Last June’s European Parliament (“EP”) election was widely considered a failure. Turnout was low across Europe, and, as has been the case in every EP election since they were introduced in 1979, voters responded exclusively to domestic cues in deciding how to fill the European Union’s only directly elected body. Campaigns were waged entirely on domestic issues outside of the purview of the EP, and the popularity of domestic prime ministers, who were not on the ballot, was the most important factor in determining the results. The EP is supposed to provide a popular check on the other legislative bodies in the European Union (“EU”), which are either appointed or directly controlled by member state governments, and thereby reduce the EU’s “democratic deficit.” Instead, the failure of EP elections to generate popular feedback on EU policy allows the deficit to fester and undermines the separation of powers inside the EU. This paper argues that the problems of EP elections are much like the problems in a variety of American state and local elections. Election laws ensure that national parties are on the ballot, and both legal limitations and strategic considerations make it difficult for these national parties to develop separate localized identities, or in the case of EP elections, Europeanized ones. Rationally ignorant voters who know little about the individual figures in these European bodies rely on the party heuristic that is available on the ballot, as it is the only relevant information that they have. Moreover, they do so even though it is unclear how closely preferences on European or local policies track preferences about national issues. The result is that national party preference ends up being reflected in these elections, despite the fact that the winners will decide policies at another level of government. Put another way, there is a “mismatch” between the institutional role the EP is asked to play in the EU’s separation of powers — the voice of European citizens about EU policies — and the level of party competition at which EP elections are contested. Mismatch problems are endemic in federal systems and are generated by constitutional structures that ask more of voters than they are capable of providing. However, they can be solved or at least mitigated with election law tools. Following a procedure used in a variety of developing countries, the EU could pass a law that the EP will only seat members from those parties that both won seats from a given EU country and received a certain percentage of the vote in a quarter of EU member states. This would force the coalitions formed in the EP — the so-called “Euro-parties” — onto EP ballots, as parties would need to contest elections across Europe. Voters thus would have access to a European rather than national heuristic on the EP ballot, which would better allow them to use these elections to express preferences about EU policy.

The Seventeenth Amendment and Federalism in an Age of National Political Parties

Despite it being the constitutional amendment that most altered the design of the federal government, and despite recent efforts by many prominent figures to repeal it, little is known about why the Seventeenth Amendment passed in 1913. Existing histories of why the Constitution was amended to require direct elections for U.S. Senators, rather than having them appointed by state legislatures, cannot account for two major historical puzzles. Why were state legislatures eager to give away the power to choose Senators? And why was there virtually no discussion of federalism during debates over removing a key constitutional protection for states?Using both positive political theory and historical evidence, this Article offers a theory that can provide an answer to these questions. Support for direct elections was, at least in part, a result of the rise of ideologically coherent, national political parties. The development of national parties meant that state legislative elections increasingly turned on national issues, from war to currency policy to international trade, as voters used these elections as means to select Senators. State politicians and interest groups supported direct elections as a way of separating national and state politics. Federalism was not invoked against the Seventeenth Amendment because state legislative appointment was frustrating a precondition for the variety of benefits that come from republican federalism, the ability of state majorities to choose state policies. Modern advocates of repealing the Seventeenth Amendment, from Justice Scalia to Gov. Rick Perry, claim the mantle of federalism, but they have the case almost entirely backwards. Repealing the Seventeenth Amendment would reduce the benefits of federalism, as it would turn state legislatures into electoral colleges for U.S. Senators.While important in its own right, the history of the Seventeenth Amendment can also teach us a great deal about how federalism functions in the real world of politics more generally. First, contrary to the claims of scholars like Larry Kramer, national political parties do not necessarily serve as “political safeguards of federalism,” but instead can make state politics turn on national issues, reducing the influence of the preferences of state citizens on state policy. Second, certain state governmental powers – from the power to gerrymander to control over issues normally associated with the federal government – reduce the democratic accountability of state officials that undergirds most normative theories of federalism. Finally, despite the Seventeenth Amendment, state elections today still largely turn on national politics. Although state issues are sometimes important, the most important factor in state legislative elections is the popularity of the President. If the benefits for state democracy sought by supporters of the Seventeenth Amendment are to be achieved, electoral reform is a more promising avenue than structural constitutional change.

'Politics as Markets' Reconsidered: Natural Monopolies, Competitive Democratic Philosophy and Primary Ballot Access in American Elections

Over the past decade, mainstream election law scholarship has been based largely on a simple but forceful set of analogies: politics are like markets, parties are like competing firms and voters are like consumers that decide at election-time which partys public policies they would like to buy Proponents of this theory have been criticized for taking the analogy between markets and politics too far and for relying too heavily on one method-electoral competition-to solve all the problems of American democracy. However, the true problems of the politics as markets theory lie at the inverse of these criticisms. Our understanding of markets can explain a great deal about electoral behavior, but scholars have failed to apply the lessons of economic theory to the central fact of American politics: the existence of a two-party system. Economists have developed a long literature explaining how to regulate markets that, as a result of extreme economies of scale, trend toward having only a few participants (known as the problem of natural monopoly). The literature counsels policy-makers to permit a natural monopolist (or, in the case of elections, a natural duopoly) to become entrenched but to regulate its pricing behavior, and to deregulate downstream markets that are not naturally monopolistic. The problem of natural monopoly, and not a simpler understanding of how electoral markets work, should be the basis for any analysis of American elections based on a market metaphor. Moreover, competition is not too narrow a concept on which to base the regulation of elections, but rather too broad. There are a number of conflicting normative justifications for using competition as a guide for electoral regulation, each of which suggests different policy outcomes. Specifically, electoral competition can promote the ends of representative government or decisive electoral results, but policies that enhance one of these often harm the other. Rather than assume away the benefits of either representation or decisive outcomes, as much of politics as markets scholarship does, judges should balance these ends when determining the constitutionality of state regulation of electoral competition. The Supreme Court has created one line of cases that does not suffer from these flaws. Its holdings in primary ballot access cases like Timmons v. Twin Cities Area New Party, California Democratic Party v. Jones and Clingman v. Beaver, much pilloried by politics as markets scholars, are in fact consistent with the application of economic theory to electoral markets and feature a balanced approach to the conflicting normative justifications for favoring competition. This paper stands as a defense of the Courts approach to resolving the constitutional law of primary ballot access as a matter of economic theory and competitive democratic theory.

Stuck! The Law and Economics of Residential Stability

America has become a nation of homebodies. Rates of inter-state mobility, by most estimates, have been falling for decades. Even research that does not find a general decline finds that inter-state mobility rates are low among disadvantaged groups and are not increasing despite a growing connection between moving and economic opportunity. Perhaps more important than changes in overall mobility rates are declines in mobility in situations and places where it is particularly important. People are not leaving areas hit by economic crises, with unemployment rates and low wages lingering in these areas for decades. And people are not moving to rich regions where the highest wages are available. This Article advances two central claims. First, declining inter-state mobility rates create problems for federal macroeconomic policy-making. Low rates of inter-state mobility make it harder for the Federal Reserve to meet both sides of its “dual mandate” of stable prices and maximum employment; impair the efficacy and affordability of federal safety net programs that rely on state and local participation; and reduce both levels of wealth and rates of growth by inhibiting agglomeration economies. While determining an optimal rate of inter-state mobility is difficult, policies that unnaturally inhibit inter-state moves worsen national economic problems.Second, the Article argues that governments, mostly at the state and local levels, have created a huge number of legal barriers to inter-state mobility. Land-use laws and occupational licensing regimes limit entry into local and state labor markets; differing eligibility standards for public benefits, public employee pension policies, homeownership subsidies, state and local tax regimes, and even basic property law rules reduce exit from states and cities with less opportunity; and building codes, mobile home bans, federal location-based subsidies, legal constraints on knocking down houses and the problematic structure of Chapter 9 municipal bankruptcy all limit the capacity of failing cities to “shrink” gracefully, directly reducing exit among some populations and increasing the economic and social costs of entry limits elsewhere. Put together, the Article shows that big questions of macroeconomic policy and performance turn on the content of state and local policies usually analyzed using microeconomic tools. Many of the legal barriers to inter-state mobility emerged or became stricter during the period in which inter-state mobility declined. While assigning causality is difficult, public policies developed by state and local governments more interested in local population stability than in ensuring successful macroeconomic conditions either generated or did not push back against falling mobility rates. The Article concludes by suggesting ways the federal government could address falling mobility rates.