Conflicting representations: Lani Guinier and James Madison on electoral systems.

• Author: Graber, Mark A.

Lani Guinier believes "that every citizen has the right to equal legislative influence."(1) For this, she has been assailed as a "Quota Queen" by politically correct conservatives more interested in sowing social discord than in promoting public deliberation about American electoral systems.(2) Although many, perhaps too many, passages in The Tyranny of the Majority(3) concentrate on the political problems of persons of color, the "one-vote, one-value"(4) voting schemes that Guinier proposes will not establish a fixed racial spoils system. Proportional representation (PR) permits persons to choose their political identities.(5) As Guinier notes, "[n]o one needs to decide in advance what a group is. The voters make that decision by the way they cast their ballots."(6) Indeed, she adds, "[n]o one needs to decide whether a minority group identity is the only or primary identity. The voters do that by the way they vote."(7) When a significant number of black voters support candidates committed to serving their perceived common interests as African-Americans, that group will have the power to elect what Guinier refers to as an "authentic" black representative.(8) Nevertheless, cumulative voting schemes permit the same number of whites, Ku Klux Klan members, plumbers, and Brooklyn Dodger fans to elect the "authentic"(9) representatives of their choice.(10) The virtue of proportional representation is that such electoral systems minimize the voters "represented" by legislators they did not choose.(11)

Lost in the hue and cry over whether race-neutral cumulative voting schemes somehow amount to unwarranted special pleading for racial minorities is any serious discussion about Guinier's notion of representation and the probable impact of proportional representation on legislative support for racial justice. Although Guinier occasionally implies that her proposals are Madisonian,(12) the electoral schemes set out in The Tyranny of the Majority(13) seem more inspired by Anti-Federalist thought than by The Federalist Papers.(14) The Tyranny of the Majority(15) advances a sophisticated and uncompromising theory of "interest representation."(16) In sharp contrast to Madison, who thought that properly designed institutions minimize self-interested voting and allow more public-spirited motives to hold sway in both electoral and legislative contests, Guinier prefers democratic procedures that harness representatives to the interests of their constituents. Whereas Madison advanced a trustee model of representation that gave elected officials substantial leeway to deliberate independently about justice and the public good, Guinier's works advocate "a delegate model of representation" that will "ensure substantive accountability to constituents' policy preferences. . ."(17)

This essay compares the ways in which Guinierian and Madisonian electoral systems purport to achieve racial justice. Although my sympathies are clearly with Madison, this paper does not make the definitive case against proportional representation. Instead, the following pages merely point out that a movement toward proportional representation in our society might weaken support for more egalitarian racial policies and suggest how the civil rights movement might benefit by less populist understandings of representation. At the very least, I hope to clarify the conditions under which different electoral systems promote racial justice and to begin a more informed dialogue about the voting schemes among which Guinier would have Americans choose.

GUINIER AND PROPORTIONAL REPRESENTATION

Proponents of proportional representation celebrate the numerous advantages of their preferred electoral system. Most of those virtues are procedural. Douglas Amy's Real Choices/New Voices maintains that proportional representation "would minimize wasted votes, give minor parties fair representation in our legislatures, improve the quality of campaigns, increase the number of women and racial minority officeholders, encourage more voter participation, and increase the responsiveness and legitimacy of government."(18) In addition to purifying democratic processes, a goal shared by some conservative populists,(19) liberal proponents of proportional representation expect that the adoption of that electoral scheme would yield more desirable public policies. "[I]ncreased representation," Amy suggests, "means minority communities can better promote their political and economic interests and focus more attention on what they see as pressing issues." "Imagine," he asks, "if twelve black United States senators, rather than none [or one], were pushing legislation on civil rights, affirmative action, urban renewal, and social welfare spending. Would this not make a significant difference?"(20)

Guinier similarly regards proportional representation as both an end in itself and a means for advancing the substantive goals of the civil rights movement. Although at times she claims that "[t]he issue here is one of procedure and process, not substantive justice,"(21) other passages in The Tyranny of the Majority declare that "the real goal" of her proposals is to "alter the material condition of the lives of America's subjugated minorities."(22) Cumulative voting will "advanc[e] . . . a progressive agenda,"(23) in Guinier's opinion, by enabling significant political minorities to "assert their most salient interests and to hold their elected officials accountable for advocating those interests."(24) Not only would proportional representation enable African-Americans and their political allies to elect more representatives, but that voting scheme also would inhibit those "black officials" from "defin[ing] their political agenda without reference to or consultation with a community base."(25) Hence, racial minorities could be confident that the officials they choose actually would represent them in legislative debates.

Guinierian electoral institutions should serve some of their intended purposes. The cumulative voting schemes Guinier proposes probably would enable persons of color to elect more public officials committed to strengthening present civil rights laws. Amy persuasively argues that the party-list version of proportional representation is partly responsible for the more equitable representation of women and minorities in European legislatures. In particular, he points to "the pressure on the parties . . . to construct lists that represent the broad electorate . . . so that their slates will have wide appeal."(26) No reason exists for thinking that proportional representation would have a different impact in the United States. Significantly, proportional representation would increase the number of black legislators without any recourse to the contentious racial gerrymanders that the Supreme Court recently declared unconstitutional in Shaw v. Reno(27) and Miller v. Johnson.(28) "[T]he controversial issues of reverse discrimination and reserving seats by race become irrelevant under proportional representation," Amy notes. "PR simply allows for the election of minority candidates, if they have voter support."(29)

In addition to increasing the number of black elected officials, institutional mechanisms that promote interest representation also are more likely than present electoral institutions to prevent those officials from developing independent priorities when in the legislature. Proportional representation encourages new parties and more issue-oriented parties (such as the Greens in Germany). This development, in practice, reduces the capacity of elected officials to exercise their personal judgment on matters where their beliefs or interests diverge from those of their electorate.(30) The more parties, the more likely a voter can find candidates with whom he or she agrees on all salient issues.(31)

Nevertheless, the practical consequences of electoral systems that aspire to give every citizen equal legislative influence are likely to be less progressive than their advocates hope. To the extent that proportional representation ensures that the political center will control public policy,(32) adopting that electoral system will do little to improve the lot of less fortunate citizens. Indeed, some recent public opinion polls suggest that proportional representation is more likely to augment the overall political strength of extreme racists than of persons committed to racial justice. Moreover, electoral schemes that tighten the ties between constituents and representatives reduce the probability that "authentic"(33) conservative white representatives will support more liberal racial policies than their conservative white constituents favor.

Hard as this may be for many left-wing academics to accept, recent opinion polls suggest that politically inefficacious white reactionaries may be more numerous than politically inefficacious progressive persons of color. Contemporary surveys find that more Americans believe that present policies unduly favor blacks than think present policy favors whites. "Voter attitudes," the most recent Times Mirror Center poll found, "are punctuated by increased indifference to the problems of blacks and poor people."(34) Approximately half the citizenry believes that "we have gone too far in pushing equal rights in this country," and that "blacks who can't get ahead in this country are mostly responsible for their own condition."(35) Popular majorities also are prepared to jettison those welfare policies that disproportionately service racial minorities. Eighty-five percent of Americans agree that "poor people have become too dependent on government assistance programs," and most disagree with claims that "the government should help more needy people even if it means going deeper in debt."(36)

If these surveys are accurate, then proportional representation schemes that enable the Rainbow Coalition to elect ten more representatives also would enable...