INTRODUCTION I. POLITICAL ENTRENCHMENT THROUGH THE LENS OF PUBLIC LAW A. What Is Political Entrenchment? B. Two Forms of Political Entrenchment 1. Electoral Entrenchment 2. Legislative Entrenchment 3. Common Denominators II. FROM FORMAL TO FUNCTIONAL ENTRENCHMENT A. The Idea of Functional Entrenchment B. Money and Mobilization 1. From Poll Taxes and White Primaries to Labor Law 2. From Campaign Finance Reform to Tort Reform C. Shaping the Political Community 1. From Gerrymandering to State Admissions 2. From Suffrage Restrictions to Immigration D. Switching Decision Makers 1. From Legislative Entrenchment to Judicial Entrenchment 2. From Legislative Entrenchment to Administrative and International Entrenchment E. Summary III. RATIONALIZING ENTRENCHMENT? A. The Uneasy Case for Policing Formal but Not Functional Entrenchment 1. Harmfulness 2. Identifiability 3. (In)conclusion B. Extensions 1. The Uncertain Case for Distinguishing Constitutional Entrenchment 2. The Uncertain Categorical Boundaries of Entrenchment CONCLUSION INTRODUCTION
In politics, winning is only the first step. The challenge is then to make victories "stay won"--to protect them from reversal when political fortunes shift. Thus we see parties, politicians, and prevailing coalitions continually strategizing to lock in their gains, battening down their offices and policies against the winds of political change.
As far as public law is concerned, such efforts at political "entrenchment" are viewed as dubious at best. In the context of election law, attempts by temporarily prevailing political parties, incumbent politicians, and electoral majorities to solidify their hold on office by gerrymandering electoral districts, selectively restricting the franchise, or using campaign finance regulation to suppress the political speech of opponents have been the target of sustained criticism by scholars and some skeptical attention on the part of courts. (1) Manipulating the ground rules of electoral politics in these ways is regarded as an obvious pathology of democratic politics. (2) A separate body of scholarly commentary and judicial decision making condemns "legislative entrenchment" in the form of explicitly unrepealable statutes and elevated procedural requirements for statutory revision. Here again, the entrenchment of political outcomes is viewed as self-evidently illegitimate: it is said to be a fundamental principle of democracy that "governments are not allowed to bind future governments" (3) and that a present majority cannot "bind the hands of future decision makers." (4)
Yet political actors intent on entrenching their preferred parties or policies need not resort to manipulating the formal rules of the Constitution, elections, or legislation. Consider recent changes to public-sector labor law. Labor unions generally provide support to Democratic candidates, mobilizing pro-Democratic voters and funding the logistical and organizational infrastructure of Democratic campaigns. Seeking to defend their hold on power against Democratic challengers, Republican officeholders have enacted restrictive labor legislation for the purpose of weakening unions. (5) In 2011, for instance, the Republican-dominated Wisconsin legislature overhauled the state's collective bargaining laws to profoundly curtail unions' ability to participate effectively in politics. In case the purpose of these measures was not apparent, the new restrictions exempted all the unions that had endorsed the Republican Governor in the previous election. (6) The goal, it seems, was to selectively incapacitate the Republicans' political opponents, (7) and not just at the state level: as Wisconsin's Republican senate majority leader put it at the time, "[I]f we win this battle, and the money is not there under the auspices of the unions ... President Obama is going to have a ... much more difficult time getting elected...." (8) Wisconsin Republicans intent on undermining their political opposition and entrenching their party in office did not need to resort to disfranchisement or gerrymandered electoral districts. They used labor law instead.
Or consider Social Security, a program that is notorious for its resistance to reform or retrenchment. The program is not protected by any legal barrier to repeal or special election rules favoring its supporters. Rather, the program mobilized and empowered its defenders to stave off subsequent political attacks. Put differently, Social Security is entrenched not formally, but functionally. This was no accident. In developing the program, President Franklin D. Roosevelt "had one overriding aim. He wanted to entrench [S]ocial [S]ecurity so deeply in our institutional life that it would be politically impossible for his opponents to repeal it." (9) Or, as President Roosevelt himself put it, "[N]o damn politician can ever scrap my [S]ocial [S]ecurity program." (10)
Labor law and Social Security are hardly unique. A vast literature in the social sciences explores the multifarious means by which political actors insulate themselves and their policies from political change. Examples range widely. In economics, Daron Acemoglu and James Robinson have argued that the single greatest impediment to economic growth throughout world history has been the conservatism of entrenched elites who fear that "creative destruction" in the economic sphere could unsettle their dominance in the political sphere. (11) Less dramatically, in legislative contexts ranging from tax reform and emissions trading to the Affordable Care Act and Dodd-Frank, political scientists have described how progressive reformers seek to "refashion the political context" in order to "entrench and deepen" their major policy initiatives. (12) Another influential body of work describes how, following the lead of New Deal Democrats who sought to build their policy gains into the structure of the administrative state, temporarily prevailing political coalitions seek to manipulate administrative structure and process in order to "stack the deck" in favor of their preferred outcomes. (13)
Legal scholars not infrequently draw upon, and even contribute to, these lines of interdisciplinary work. Yet there has been almost no recognition that the functional entrenchment strategies being described serve the same purposes as the formal entrenchment techniques that public law regulates. Nor is there recognition that the democratic concerns invoked against formal entrenchment are equally applicable when identical outcomes are achieved functionally.
Public law's normative perspective on political entrenchment is puzzling in another respect as well. If locking in political arrangements and binding the hands of future decision makers is a democratically dubious enterprise, then what are we to make of constitutionalism? One of the primary purposes of the Constitution and constitutional law, after all, is to entrench rights, rules, and structures of government against ordinary political change. To be sure, the entrenched authority of the Constitution has provoked generations of handwringing about the antidemocratic implications of constitutional constraints on present majority rule. On the whole, however, constitutional entrenchment is widely accepted. Indeed, it is celebrated, for its contributions to democratic stability, rights protection, and the historical continuity of the American political community. What is it, then, that leads courts and scholars to treat constitutional entrenchment as a qualitatively different phenomenon than entrenchment at the electoral and legislative levels?
In sum, the existing picture of political entrenchment in public law is both partial and internally inconsistent. Courts and scholars have maintained an oddly myopic focus on entrenchment strategies that operate through explicit legal rules aimed at processes of political change, while turning a blind, or at least uncritical, eye to the vastly more expansive domain of political entrenchment. And even within that limited field of vision, public law has regarded legislative, electoral, and constitutional entrenchment as distinct and self-contained phenomena, ignoring both their functional and normative similarities.
To illustrate, imagine a political coalition committed to stringent and sustained environmental regulation to prevent climate change. (14) Imagine further that the coalition has attained sufficient power at the federal level to take various kinds of political action. Finally, imagine that the coalition fears that its hold on power will be fleeting, and that antiregulatory political forces will eventually regain dominance in federal politics and seek to reverse the environmental policies enacted by their predecessors. Here are four strategies the coalition might contemplate to entrench their program against repeal. Least likely, it could attempt to enact a constitutional amendment that guarantees certain measures of environmental protection. Operating at the subconstitutional level, it could attempt to enact an unrepealable environmental statute. Taking a less direct approach, it might instead manipulate the rules of election law to favor its own candidates and voters over the opposition's and therefore retain political control and the power to continue its regulatory agenda. Finally, it might pursue a range of functional entrenchment strategies. It could create a tradeable emissions program that would facilitate the formation of interest groups with a stake in preserving and expanding the prevailing regulatory regime. It might try to drive polluting industries offshore and out of the American political process. Or it could delegate expansive regulatory authority to a politically sympathetic agency like the Environmental Protection Agency, which might be more insulated from change than the political branches. All of these different strategies might be viewed by the coalition as functional substitutes--more...