Elizabeth Garrett

When Voters Make Laws: How Direct Democracy is Shaping American Cities

Three challenges affect the use of initiatives and referendums concerning bonds to fund local infrastructure. First, public officials can often make take-it-or-leave-it offers to voters, conferring substantial power on the agenda setters and not necessarily leading to policy that the voters prefer. Second, initiatives are subject to sequential-elimination agendas that can result in suboptimal policy. This problem is compounded in local direct democracy by the presence of multiple jurisdictions and an aggregate limit on bond capacity, leading to a “race to the polls.” Third, in some but not all cases, voters can be faced with an information environment that precludes making reasoned decisions at the polls. The authors assess several case studies to determine whether trustworthy voting cues are available to voters in elections on infrastructure bonds.

Democracy in the Wake of the California Recall

The recall of Governor Gray Davis and simultaneous election of Arnold Schwarzenegger provide a unique window on aspects of elections and democratic institutions that are not limited to statewide recall elections. Although one must be wary of drawing general conclusions about the political process from an unusual event such as the statewide recall, this election can serve as a way to think about broader issues relevant not only to future recalls but also to all candidate and issue elections in California and throughout the nation. In this article, I discuss insights that the recent recall provides with respect to four familiar areas of law and politics. First, the recall demonstrated the significant and sometimes troubling role that money plays in modern campaigns, as well as the difficulty of constructing effective and comprehensive campaign finance laws. Second, the unusual structure of the recall election, where an election for Daviss successor was on the same ballot as the recall question, helps to assess the role of political parties in elections. It suggests that independent and minor party candidates can be part of an election without causing widespread voter confusion. Third, the over twenty lawsuits filed before the election was held - with one threatening to delay the election for months until an en banc panel of the Ninth Circuit stepped in - suggest that litigation is being used more aggressively as political strategy in the wake of the Supreme Courts intervention into the 2000 presidential election. Unless courts take a less activist role in cases affecting elections, this disturbing trend is likely to continue. Finally, I conclude with a discussion of the interaction between direct democracy and representative democracy. In states with a hybrid system like California, these two forms of democracy influence each other - a reality that we witnessed in the days before the recall election and that we are likely to continue to see as Governor Schwarzenegger threatens to use initiatives to pressure a recalcitrant legislature to do his bidding.

McConnell v. FEC and Disclosure

237 THE WILLINGNESS of the majority and most dissenting justices to uphold the disclosure provisions in the Bipartisan Campaign Reform Act (BCRA) suggests that disclosure statutes are more likely to withstand constitutional scrutiny in the wake of McConnell v. Federal Election Commission.1 Disclosure will be increasingly important at the federal level as one of the tools to combat efforts already underway to circumvent BCRA’s substantive limitations. The “loophole” of using nonprofit organizations as conduits for fundraising and expenditures was apparent to the Justices when they wrote McConnell;2 such organizations will take over some of the role previously played by political parties. Although some nonprofits are required to disclose their contributors, others can hide the sources of their funding.3 Although current efforts to evade BCRA place disclosure rules, and any gaps in their coverage, in high relief, the significance of mandatory disclosure goes well beyond federal candidate campaigns. Disclosure rules are the most widespread regulation of the campaign finance system, and they are the sole regulation in several electoral arenas. In state and local candidate elections, several states have adopted disclosure statutes, some quite aggressive, others less robust, as their primary regulatory tool.4 In direct democracy, disclosure is the only form of regulation permitted by Supreme Court jurisprudence. Because the Court has held that issue elections pose no threat of quid pro quo corruption, the justification for disclosure in direct democracy must rest solely on informational concerns. Notably, in McConnell, the majority and Justice Kennedy seem willing to accept the informational interest as a sufficiently important state interest to support mandatory disclosure. Kennedy considers this interest as an independent justification for disclosure, while the majority links it to a kind of corruption that occurs when groups spend money to influence electoral outcomes in ways that conceal their identities from voters.5 A state interest in providing information to empower citizens to vote knowledgably and to combat deception can support disclosure statutes in both candidate and issue elections.

Transparency in the Budget Process

Budget procedures are often adopted or changed to improve transparency in budgeting. This phrase can refer to two different, although related, stages of the budget process. First, transparency may refer to the outputs of budgeting; here the ideal is that the tradeoffs inherent in a budget should be made clear, salient and understandable to policy makers and the public. Second, transparency may refer to the inputs of budgeting; here the ideal is to ensure that the decision-making process is itself conducted in public. This paper focuses on the second concept of budget transparency - the degree to which important budgeting decisions are made in public and in open deliberation and debate. We identify an ideal transparency regime for the federal budget process, one that optimizes the benefits and costs of transparency and opacity. Two institutional-design tradeoffs are critical. First, transparency allows the public, and others who bring information to the attention of the public such as the media and challengers, to monitor elected officials and hold them accountable. However, it also allows interest groups, whose interests may not be congruent with the larger public interest, to monitor legislators. Because interest groups are better organized than the public, transparency may unduly empower those representing minority interests at the expense of overall welfare. We propose some techniques of transparency - such as delayed disclosure, which provides information some period of time after the budgeting decision has been made - that empower the voters while reducing the ability of interest groups to influence outcomes. Second, we discuss the effect of transparency on legislative arguing and legislative bargaining. Transparency deters self-interested bargains, but can also encourage posturing and inflexibility that produces bad deliberation. We propose that opacity is generally beneficial at earlier stages of the budget process, as where committees develop the macro-level allocations embodied in the concurrent budget resolution, while transparency is desirable at later stages of the process, when committees engage in concrete bargaining. Finally, we discuss various institutional constraints and second-best problems at the implementation stage, including the question whether politics will block adoption of the optimal transparency framework, the risk that transparency will be circumvented by collusion, and the risk that opacity will be undermined by leaks. Although these problems are serious, we conclude that none is insuperable.

Conditions for Framework Legislation

Congress structures some of its deliberation and decision-making through framework legislation. Framework laws establish internal procedures and rules that will shape legislative deliberation and voting with respect to a specific subset of laws or decisions in the future. Although framework laws are passed in statutory form, the portions of the laws that set out internal frameworks are usually identified as exercises of the two houses constitutional rulemaking powers, and the right of either house to change the framework unilaterally is, in most cases, explicitly reserved. Framework laws are familiar, although little scholarly attention has been paid to them as a related legislative phenomenon in the United States. I specify some of the conditions that are necessary for the adoption of framework laws. In Part I, I present two necessary conditions that make it possible for Congress to use a framework law to deal with a set of particular decisions defined in the framework. Even when these conditions are present, Congress may decline to use the option of a framework, but without the two conditions, a framework is not an option for lawmakers. First, Congress must be able to identify a concrete problem and describe it with specificity so that the framework can be triggered in appropriate circumstances. Second, the partisan configuration of Congress is significant in several ways to the adoption of framework laws, although further empirical work focused on each of the two houses is required to specify this condition more fully. In Part II, I assess three conditions that could lead Congress to choose the statutory path with respect to framework laws, rather than using an internal vehicle like a concurrent or simple resolution. First, Congress may use a statute to signal that it is making a significant change in the way it does business and that it perceives the change as more durable than other rule changes. I conclude that this has little explanatory power. Second, and most importantly, Congress will use a statute when the internal procedural change is an integral part of a larger package that must be adopted simultaneously and contains some parts that must be enacted with legal effect. In many cases, the framework is part of a larger inter-branch treaty that affects both houses of Congress and the executive branch, often with provisions delegating authority to the President. This is a necessary condition for enactment of frameworks. Finally, path dependency and institutional learning play a role, so that when an area like budgeting or trade begins to be characterized by rulemaking statutes, then future changes also tend to be adopted by statute. This is a plausibility condition, making it more likely that internal rules will be adopted by statute, but it is not a necessary condition.

Is the Party over? Courts and the Political Process

Political parties organize and rationalize politics. Decisions about elections, government structure, the relationship among states and between the federal and subnational governments, and the ability of Congress and the President to pursue their legislative agendas are affected by and affect political parties. But the legal community, in particular the judiciary, has failed to develop sophisticated positive and normative views of political parties, resulting in a jurisprudence of the political process that is inconsistent and unsatisfying. The reluctance to think seriously about political parties may be a lingering effect both of the Founders distaste for them and of the unsavory reputation they developed during the era of party machines. Increasingly, legal academics, often in collaboration with political scientists, are acknowledging the constructive role of political parties in our constitutional structure.! This aca-