Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality.

• Author: Andrias, Kate

ARTICLE CONTENTS INTRODUCTION 548 I. INEQUALITY, DEMOCRACY, AND COUNTERVAILING ORGANIZATIONS 562 A. The Unequal Landscape of Political Organization 562 B. Political Inequality in a Democratic Republic 569 C. Extant Approaches to Using Law to Combat Political Inequality 573 II. URGENCY AND PROMISE OF A LAW OF ORGANIZING 577 III. FACTORS AND FACILITATORS 586 A. Framing 587 B. Resources 595 1. Funding 599 a. Charitable Donations: Limits and Pitfalls 599 b. Self-Funding Facilitated by Law 602 c. Cost-Shifting 605 d. State Subsidies 606 2. Physical and Virtual Spaces 608 3. Information 610 4. Human Resources 612 C. Free Spaces 613 D. Removing Barriers to Participation 620 E. Material Changes, Incremental Victories, and Structural Power 623 F. Contestation and Disruption 627 CONCLUSION 631 INTRODUCTION

Among the painful truths made evident by COVID-19 are the deep inequality of American society and the profound inadequacy of our social-welfare infrastructure. The nation's lack of comprehensive health care, (1) its underfunded and inefficient system of unemployment insurance, (2) and weak workplace safety and health guarantees, (3) along with nearly nonexistent paid sick leave, (4) debtor-forgiveness rules, (5) and tenant protections (6) leave poor and working-class communities--particularly communities of color--dangerously exposed to the ravages of this pandemic, both physical and economic. (7) America's weak social safety net is, in turn, a product of a profound failure that has plagued American democracy for decades now: the wealthy exercising vastly disproportionate power over politics and government. (8)

Indeed, public faith in American democracy is at near-record lows, and increasing numbers of Americans report that they no longer feel confident in the health of their democratic institutions. When asked why, many say that money has too much of an influence on politics and that politicians are unresponsive to the concerns of regular Americans. (9) Research supports these fears, showing both that wealthy individuals are spending record sums on electoral politics (10) and that elected officials are at best only wealdy accountable to nonwealthy constituents. (11) As political scientist Martin Gilens has observed," [W] hen preferences between the well-off and the poor diverge, government policy bears absolutely no relationship to the degree of support or opposition among the poor." (12)

Of course, democracy does not require that policymaking always follow majority will or the median voter's preferences. But democracy, as well as the faith citizens have in their government, falters when lawmakers persistently disregard the priorities of nonwealthy citizens.

Much of the legal scholarship (and public commentary) concerned with this democracy deficit focuses on the increased flow of money into electoral politics and advocates for stemming that flow. (13) Scholars writing in this vein criticize the Supreme Court's jurisprudence, exemplified by Citizens United v. FEC, that has enabled unfettered campaign spending. (14) They offer a range of reforms designed to limit the flow of money into elections, many of which would require a change in the composition of the Supreme Court or the ratification of a constitutional amendment. (15) A related group of scholars advocates for shielding the legislative and administrative process from money's influence through, for example, lobbying restrictions and disclosure requirements. (16)

A second robust body of scholarship focuses not on insulating the political process from money but on trying to ensure equal rights of individuals to participate in the governance process through elections. These scholars criticize barriers to equal voting rights, including contemporary uses of gerrymandering and legislation that impose hurdles on individual voters' ability to exercise the franchise or minimize the effective voting power of particular constituents. (17) Scholars urge both doctrinal and legislative reform that would ensure more equal rights of participation.

In the last few years, a third approach has begun to emerge in the legal scholarship. This approach begins by recognizing the difficulty--both practical and constitutional--of keeping money out of politics. It also recognizes that while equal voting and participation rights are critical to the goal of combatting political inequality, they are not enough to ensure political equality in a system where wealth functions so prominently as an independent source of political influence. Thus, this third approach moves beyond campaign finance and individual participation rights and focuses instead on what we will call countervailing power. In particular, this approach is concerned with the ability of mass-membership organizations to equalize the political voice of citizens who lack the political influence that comes from wealth. (18)

The beneficial effects of countervailing, mass-membership organizations are well known to theorists and researchers of democracy. (19) Put simply, such groups increase political equality by building and consolidating political power for the nonwealthy, thus serving as counterweights to the political influence of the rich. Mass-membership organizations can serve in this capacity because, at bottom, they aggregate the political resources and political power of people who, acting as individuals, are disempowered relative to wealthy individuals and institutions. (20) More particularly, mass-membership organizations enable pooling of politically relevant resources, including money, among individuals with few such resources; they provide information to decisionmakers about ordinary citizens' views; they navigate opaque and fragmented government structures, thereby enabling citizens to monitor government behavior; and they allow citizens to hold decisionmakers accountable. And, in fact, when citizens are organized into mass-membership associations that are active in the political sphere, researchers find an exception to the general rule that policymakers are disproportionally responsive to the preferences and concerns of the wealthy. (21)

Over recent decades, however, there has been a decline in broad-based, mass-membership organizations of low- and middle-income Americans. (22) This decline in countervailing organizations has exacerbated the political distortions caused by the increase in political spending by the wealthy. But the capacity for countervailing organizations to address the distorting effects of wealth raises a critical question for legal scholars: How can law facilitate the construction of countervailing organizations among the nonwealthy? Put differently, how can law facilitate political organizing among Americans whose voices are drowned out by the distorting effects of wealth? That is the question we address in this Article.

Recently, legal scholars have begun to address related topics. For example, K. Sabeel Rahman and Miriam Seifter have written about ways that participation in administrative processes can improve the organizational strength of citizen groups. Thus, Rahman argues for designing administrative processes in ways that enhance the countervailing power of ordinary citizens, (23) while Seifter urges administrative-law scholars to pay attention to the characteristics of interest groups participating in the administrative process and to consider "looking within interest groups," referencing the manner by which interest groups determine the views of their constituents, "to illuminate the quality and nature of participation in administrative governance." (24) Tabatha Abu El-Haj has urged greater use of universal benefits and targeted philanthropy, to encourage the growth of mass-membership organizations, since both "create reasons to organize on the part of beneficiaries." (25) Both of us have written about the countervailing role that labor organizations can play in politics. (26) And Daryl Levinson and one of us have written about the ways in which ordinary public policy often has the effect--and at times the intent--of mobilizing political organization around the policy (27)

Meanwhile, another group of legal scholars has highlighted the importance of social movements and their organizations in legal change, focusing on how movements shape decisionmaking by courts, legislatures, and administrative agencies. (28) In particular, a rich literature has developed on the relationship between popular mobilization and evolving constitutional principles, (29) and on how "cause lawyers" can best serve social movements. (30) More recently, there has been a resurgence of scholarship that "cogenerates legal meaning alongside left social movements, their organizing, and their visions." (31) This work builds on an older tradition of critical legal studies and critical race theory that interrogates the limits of traditional legal rights in bringing about progressive social change given the political, economic, and social conditions that systematically disadvantage poor people and people of color. (32)

To date, however, no one has tackled directly the question that we pose here. (33) Rather than asking how the enactment of substantive legislation or administrative-participation mechanisms might boost organizing, how social movements can or hope to reshape law, or how a focus on traditional legal rights disables fundamental social change, we ask how law could be used explicitly and directly to enable low- and middle-income Americans to build their own social-movement organizations for political power.

The question is particularly urgent today as the COVID-19 pandemic has exacerbated society's existing inequalities. Working-class communities, especially low- and middle-income people of color, have experienced hardships as a result of the disease to a far greater extent than the wealthy--from massive unemployment to dangerous working conditions, from food insecurity to rising debt and risk of...