The partisanship spectrum.

• Author: Levitt, Justin
• Position: Abstract into III. Confronting Partisanship B. Structural Design, p. 1787-1827

ABSTRACT

In a polarized political environment, allegations of excessive partisanship by public actors are ubiquitous. Commentators, courts, and activists levy these allegations daily. But with remarkable consistency, they do so as if "partisanship" described a single phenomenon. This Article recognizes that the default mode of understanding partisanship is a descriptive and diagnostic failure with meaningful consequences. We mean different things when we discuss partisanship, but we do not have the vocabulary to understand that we are talking past each other.

Without a robust conceptualization of partisanship, it is difficult to treat pathologies of partisan governance. Indeed, an undifferentiated approach to partisanship makes it difficult to distinguish the features from the bugs in our political system.

Moreover, the failure to understand partisanship impairs our ability to confront the partisanship we care about most. Most observers attempt to constrain unwanted partisanship through substantive rules and structural design. But parsing the spectrum of partisanship shows that these tools are neither necessary nor sufficient to address partisanship in its most disparaged forms. Conversely, analysts have failed to appreciate the power of strong situational norms to combat the least justifiable partisanship. Contrary to conventional wisdom, officials seem to refrain from this form of partisanship far more often than they succumb to it, and norms may provide the explanation. Because these norms are socially constructed, the way we talk about partisanship matters. And we are likely getting the discussion very wrong, undermining exactly what we would hope to preserve.

This Article attempts to flesh out the distinctions that have been heretofore elided. It develops a typology of partisanship, and then engages that conceptual structure to assess the various tools by which forms of partisanship-including the most pernicious portions of the partisan structure-may be addressed.

TABLE OF CONTENTS INTRODUCTION I. THE SPECTRUM OF PARTISANSHIP A. Different Manifestations of Partisanship 1. Coincidental Partisanship 2. Ideological Partisanship 3. Responsive Partisanship 4. Tribal Partisanship B. Normative Distinctions Along the Spectrum C. A Second Normative Axis II. THE SPECIAL ROLE OF PARTISANSHIP IN ELECTORAL RULES III. CONFRONTING PARTISANSHIP A. Rules Regulating Effect B. Structural Design C. The Limits of Rules and Structure As Constraints on Partisanship 1. Judiciary 2. Executive 3. Legislature D. Role Morality and Situational Norms E. Maintaining Role Morality CONCLUSION INTRODUCTION

We are repeatedly told, by scholars (1) as well as the popular press, (2) that we are living in an age of astonishing political partisanship by public officials. These descriptive assertions often arrive with normative critique and prescriptive responses. In response to the outcry, other scholars vigorously defend partisanship in public office. (3) And the Supreme Court, while generally offering neither defense nor critique, has also noted the extensive influence of political partisanship in public policy. (4)

The vast majority of these observations share a common flaw that distorts diagnosis, analysis, and (where appropriate) treatment. Discussions of political partisanship in public office too often misunderstand the object of their attention as a concept uniform in character. The labels "partisan" and "nonpartisan" are ubiquitous in the discourse but elide meaningful and under-recognized distinctions in the underlying character of the phenomenon to be addressed.

The repeated conflation of distinct forms of partisanship is not merely a semantic problem. Imagine the pragmatic difficulties confronting geologists with just one word for "rock" or physicians with just two words for "body stuff." Or, even more apt, imagine a descriptively impoverished conception of light. To early civilizations, light appeared undifferentiated. One could conceive of more light or less light, but the only variable of interest was magnitude. We now understand that the light we observe has different components, some of which are valuable and some of which are harmful, in different combinations and to different degrees. That enlightened understanding is not merely of theoretical interest. It helps us recognize the utility of tools to replicate the aspects we favor and limit those that we do not, and establishes a foundation for building those tools. Understanding the spectrum of light creates the possibility of sunscreen and tanning booths, reflective blankets and microwave ovens.

So too with partisanship. Understanding the spectrum of partisanship similarly aids both theorists and practitioners of modern democracy. Without a robust conceptualization of partisanship, analysts misdiagnose. Reformers aim at mistaken targets. Observers evaluating reforms critique the innovations for failing to achieve results that they were not meant to achieve. We fail to accurately articulate and analyze what we perceive; that impoverished descriptive capacity leads directly to impoverished theoretical and remedial capacity. We do not recognize the problem we are attempting to solve or how to solve the problem we observe--if, indeed, what we observe is truly problematic at all. We may well be focused on solutions to effects that are not problematic, and we may be unwittingly undermining the central component of our most successful tool against the partisanship we rightly fear most. Perhaps public institutions are not nearly as "partisan" as we think--and perhaps we are unintentionally encouraging them to become more so.

Below, I attempt to articulate the distinctions that have been heretofore elided, rendering a deeper conceptualization of the modes of official political partisanship than has appeared thus far in the literature. The development of the spectrum of partisanship may help scholars theorize public action and its occasional pathologies, which are of particular consequence in the context of electoral regulation. It may also lead, down the road, to doctrinal clarification. For example, understanding the spectrum of partisanship provides new insight on the Supreme Court's unduly unrefined approach to partisanship in the redistricting arena. (5)

But this is not primarily a piece about judicial review. Beyond the judiciary, descriptive precision yields tangible payoff by allowing a thorough examination of extant policy models to confront partisanship, revealing the degree to which they may be suited to address some forms of partisanship but not others. In this vein, the prevailing thrust of recent work focuses on effect-based rules (6) and structural design. (7) Both are undeniably important. But commentators seem to have missed that their favored reforms may be neither necessary nor sufficient to address the most pernicious forms of partisanship. In particular, I point out that the most disfavored form of partisanship is--despite the hyperbole--far less prevalent than should be expected given current rules and structure. That is, the spectrum of partisanship shows that the world we live in is actually far less partisan than conventionally believed, when it comes to the form of partisanship that we care about most. And the reformers' most favored tools are not primarily responsible for this state of affairs.

Instead, I posit that situational norms and role morality are bearing most of the existing load. These norms are surprisingly powerful but also surprisingly fragile. Role morality is maintained by targeted social sanction for violating shared norms: that is, norms are maintained based on how and when we laud or criticize the public action we observe. Misdirected approval or critique erodes the strength of the norm. (8) Without a nuanced understanding of partisanship, current discourse is often exceedingly poorly targeted, undermining one of the most effective weapons against undesirable partisan action. This Article attempts to correct that misstep.

The Article proceeds as follows. Part I brings some descriptive precision to bear on the spectrum of partisanship in public office, working through an introductory typology. These distinct forms of partisanship have different normative valences in different contexts: some partisanship is valued, and some is not. Part II turns briefly to partisanship in the creation of electoral rules, which exacerbate the impact of partisan behavior and thereby give rise to concerns of greater weight. Part III examines the prevailing means to address different forms of partisanship, noting the strengths and limitations of each. It then demonstrates that the best recognized tools cannot explain what we observe in the real world--and discusses situational norms, the underappreciated tools that can do so.

1. THE SPECTRUM OF PARTISANSHIP

   The literature reflecting upon political partisanship in public office is plentiful. It spans disciplines and methodologies, from the rigorously empirical to the resolutely philosophical to the emphatically pop. (9) Yet most of this work shares a common unrecognized flaw: an assessment of "partisanship" as if the concept were uniform. (10)

   In this Article, I treat political partisanship in public office as a category of activity: a genus rather than a species. It comprises

   activity reliably favoring or appealing to adherents of one political party (11) over others or injuring adherents of one or more political parties more than others. (12) This may include activity reliably favoring or injuring individually identified political actors or party adherents as a class. The preceding participles are both ambiguous and intentional: "favoring" and "appealing" and "injuring" may refer to intent, or effect, or both. And this definition is also not exclusive. That which reliably and systematically favors Republicans over others, or that which is designed to do so, may be understood as partisan even if it...