The partisanship spectrum.

AuthorLevitt, Justin
PositionContinuation of III. Confronting Partisanship B. Structural Design through Conclusion, with footnotes, p. 1828-1868

Timing rules represent another form of structural constraint that may be designed to limit short-term responsive or tribal partisanship. These features entail decisions undertaken with some gap between the decision and its implementation; the idea is that policymakers will be less able to tailor the policies they prefer to achieve partisan consequences if they do not know exactly how implementation will proceed. Examples include districts that take effect years down the road when the local political climates may have shifted, (125) or regulations of election procedures drawn up before it is apparent that they will benefit or disfavor certain voters or candidates. (126) Strong stare decisis rules may play a similar role in the judiciary. These structures blunt the most aggressive forms of tribal partisanship by making it more difficult to reliably know how decisions will affect particular electoral prospects in the future.

Finally, despite all of the ink spilled on judicial review over the centuries, few have noted that judicial review may be seen as another structural protection against the most extreme forms of partisanship. The very fact that a court is watching and prepared to enforce substantive rules helps to confine partisan effect and partisan intent within a permissible, albeit quite broad, zone. And the process of judicial review might, at least in theory, smoke out policies explicable purely by tribal partisanship. (127) Those who have watched the redistricting process, and the Supreme Court's steady abdication of any role in policing partisan gerrymandering, may believe that such a structural constraint amounts to little. Still, even with unilateral partisan control, no major party in any jurisdiction has yet attempted to legislate its chief competitor completely out of existence, despite substantial short-term incentives to do so. It is likely that the institutional power of the judiciary stands as one explanation why such partisan displays still remain beyond the pale.

  1. The Limits of Rules and Structure As Constraints on Partisanship

    The substantive rules and institutional structures discussed above have dominated analysts' discussions of constraints on partisanship. Still, despite the ability of both substantive rules and institutional structure to constrain partisanship, it remains too easy to overstate their impact. This seems to be a lesson that many theorists of both "Old Institutionalism" and "New Institutionalism" alike have brushed briskly past. Substantive rules and institutional structure alone are insufficient to constrain certain forms of partisanship in theory, or to explain their absence in practice. It takes more than zoning permission and a good architect to make a house a home. (128)

    Consider, for example, a hypothetical commission designed to draw district lines; the commission is populated by individuals carefully screened to ensure that none is beholden to a particular incumbent, and there is no indication that any individual commissioner has any particular electoral ambitions of her own. To mute ideological partisanship, the commission is structured to include an equal number of registered Democrats and registered Republicans. (129) To mute coincidental partisanship, the commission must follow county lines where doing so would not violate constitutional equipopulation mandates (130) or federal statutes like the Voting Rights Act. (131)

    These rules and structural elements are typically seen as meaningful constraints. And yet, with these constraints alone, this hypothetical commission is not as far from the Madison County legislature of 2001 (132) as many likely assume. The federal requirements create pockets of substantial discretion for those drawing the lines. The commissioners may be independent from incumbents and without self-interested incentives, and yet still be fervent party enthusiasts. (133) Savvy actors will soon discover that they can best promote their party's interests through detente. (134) In a jurisdiction that can support rough partisan equity, a fight between rational opposing forces seeking maximum partisan effect will often resolve into equal numbers of maximally safe districts, just as surely as a fight over a dollar yields fifty cents for each equally matched contestant. True, the resulting lines may contribute rough partisan equity in the legislative delegation. But rough partisan equity is not the only conceivable interest to be sought in the design of representative districts. The incentives of tribal partisanship, bounded only by substantive rules and institutional structural design, may overwhelm otherwise beneficial public policy even under conditions of partisan stalemate.

    The above scenario suggests that rules and structure may not alone constrain the possibility of partisanship--or, at least, of some forms of partisanship. Real-world examples carry the point one step further. We can observe many public entities that do not normally behave in tribally partisan fashion, even when substantive rules and institutional structure would make such tribal partisanship possible, and when natural incentives would make it desirable. These examples make clear that some other phenomenon is doing much of the real work.

    1. Judiciary

      Consider the state court justice system. Despite the American Bar Association's contrary recommendation, (135) many judges are elected in partisan contests. (136) In several states, lower-court judges elected in partisan races will have their decisions reviewed by appellate and supreme court panels comprising judges who were also elected in partisan races. (137) Given the political composition of the electorate and much of the bench in these states, there is a relatively high likelihood that litigation will be overseen, from start to finish, by state-court judges of a single partisan persuasion who were elected in expressly partisan contests. (138) In any given piece of litigation, the substantive rules of law may provide outer boundaries for partisanship, but judges have plentiful discretion in evidentiary rulings, sentencing determination, fact-finding, and the application of facts to law, not to mention construction of ambiguous statutes and the development of legal rules within the common law. Structural features like stare decisis and appellate review provide only modest bolstering of these outer boundaries. (139) There is plentiful room within these bounds for judges elected in partisan contests to systematically and routinely favor or punish Republican or Democratic litigants, depending on their personal partisan proclivities and their jurisdiction's political composition. Many litigants are not pleased with the delivery of justice in state courts. (140) But credible examples of these judges deciding cases based on responsive or tribal partisanship are notable for their extreme rarity. (141) Rules and structure do not, on their own, explain the manifestation of partisanship or its absence.

    2. Executive

      Or consider an example from administrative law. The Federal Election Commission (FEC) is the agency with responsibility for federal campaign finance regulation. Its six commissioners are appointed by the President and confirmed by the Senate; (142) but as commentators have recognized, "[t]hanks to a well-settled convention with roots in an earlier, unconstitutional FEC selection procedure, the FEC really consists of three Democrats and three Republicans selected by party leaders in Congress and then 'made official' by the White House." (143) Among the FEC's many responsibilities is a role in the enforcement of campaign finance laws by levying civil penalties against offenders and referring egregious cases to the Attorney General. (144) But a structural supermajority provision is built into the statute: at least four votes are required for action. (145)

      While the judicial example above seems ripe for partisan action, the FEC setup seems ripe for partisan stasis (146)--and, indeed, the FEC has been roundly condemned, early and often, as a poster child for purported partisan deadlock. (147) Even the newest FEC commissioner made headlines recently when she commented, just a few months after arriving, that "she found the level of partisan division at the FEC 'very surprising.'" (148)

      Commissioner Ravel's general observation, however, could indicate any of several different forms of partisanship, from narrow tribal favoritism to ideological disagreement over vigorously contested terms of campaign finance regulation. Individual enforcement actions help put the observation under a microscope. Most actors in the federal campaign sphere will be either openly partisan or primarily aligned with partisan actors, and so it is reasonable to expect that most entities committing campaign finance violations, small or large, will similarly be openly partisan or primarily aligned with partisan actors. When potential enforcement actions arise, a particular entity is necessarily targeted, and the targeted entity's partisanship or perceived partisanship is not only known but often unavoidably prominent. Moreover, the FEC has great discretion in this arena; though campaign finance law defines legal violations, no substantive rule compels Commission action to punish a violation. (149)

      Given this environment, and given the structure of the FEC, one might expect three-to-three deadlock on every enforcement action. That is, with blanket authority to choose their own designees, party leaders should theoretically select commissioners with the incentive and proclivity to engage in tribal partisanship. Once in office, the three Democratic commissioners should theoretically vote against discipline of any Democratic-affiliated targets, and the three Republican commissioners should theoretically do the same for their Republican counterparts. (150) We should expect enforcement to break down, three-to-three, in virtually every case against a...

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