Paved With Good Intentions: A Political Model of Inclusion

By Sarah Berman

In political regulation, the path taken is necessarily determined by what is sought at the end. The goal in turn is dependent on one's theoretical perspective. America is often referred to as a kind of "hybrid" of competing -- and often contradictory -- impulses. In the later 20th century, Madisonian institutions have come under increasing influence of populist ideas. Madisonian notions emphasize the inevitably of conflict and the necessity of translating popular ambition and majority will into representative institutions. Politics is conceived of as a kind of competition between various factions and diverse preferences.

Populism instead follows more of a Rousseauean notion of the individual. Rousseau's theory of a "general will" suggests like-minded citizens directly connected to one another and the government. Those who stray from the public good are to be elevated, enlightened. Competing preferences is a case of poor education, rather than a natural outcome of human differences. The more participation in government, the better policy outcomes will accurately reflect the true public interest.

Since the 1960s, reforms have intended to move our political system towards these ideals. Americans, more distrustful of government, vote more and more for populist reforms: government should be like us, act like us and share our experiences. This is reflected repeatedly in various reform agendas. Sunshine laws, laws mandating open meetings of specific governmental bodies, are currently in place in all fifty states and the District of Columbia. These laws were motivated by two populist impulses: increasing participation and exposing possible corruption. James Asaf argues that it was a form of Jeffersonian self-government that was pursued in passing the laws, increasing and encouraging access to the policymaking process. Increased participation would prevent "private interest groups from asserting undue influence on the deliberative process" (Asaf). "The greater the audience," he writes, "the more the power of special interest will be diluted in the competition with other faction." Similarly, the Sunshine Laws intended to use the press to monitor governmental proceedings, akin to Jefferson's idea that the press was the "only safeguard of public liberty" (James Cawley). Public disclosure and discussion would prevent representatives from pursuing selfish motives.

A more progressive approach to the Sunshine laws lies in their utility as information providers. "A second basic condition in a procedural democracy is that individuals must have sufficient, although not necessarily complete or perfect information to make choices" (Bruce Cain, "Moralism and Realism in Campaign Finance Reform"). Openness is valued for what it provides, rather than what it checks; Cawley writes that Senator Chiles, the author of the law, intended to "educate the public or at least make sure that the opportunity was available for that educational process." In the area of voting rights too, the move has been towards a populist conception of equality: one based on individuals, not groups. Hence, the current Supreme Court stance towards gerrymandering has been coined by political scientist Bruce Cain as "the retreat from race-conscious redistricting. The individual right to equality takes precedence towards the group (read: minority) right to representation in government. Justice Warren's opinion in Reynolds reiterates populist goals: "representative government is in essence self-government through the medium of elected representatives of the people" (Warren). He goes on: "to sanction minority control of state legislative bodies, would appear to deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result." The weighing of majority interests against minority interests undoubtedly falls to the former. There are other avenues of protection for minorities, he argues, then simply electoral representation. In limiting the criterion that states can use in apportionment to population, the Reynolds decision limited the way people could constitutionally look at representation and ultimately, themselves as political citizens. They are members of a large nation and state, one of many, not members of a smaller, more inclusive political group. Reynolds then "elevated one theory of representation over all others, namely, the notion that fair decisions were the result of summing equally weighted votes into a plurality winner" (Cain, "Moralism and Realism in Campaign Finance Reform"). No longer could minority groups argue they were entitled to their own group representation; rather, they could argue only as individuals, not as a group.

Accordingly, the Reynolds rule implies that those unaffected by a decision were still entitled to a voice. If a municipal body attempted to hold a special election for impending water regulation, all citizens of the city would be entitled to a vote. Even if some had a greater stake in the outcome (water providers for example), all residents would still have equal say. Individual input would have to be balanced (one person, one vote) despite that the consequence of the vote would vary considerably for the citizens of the town. The possibility of a majority (unaffected by the outcome) infringing upon a minority increases under Warren's decision.

Yet another problem with the Reynolds case is in finding a natural stopping point. The majoritarian model would seemingly propose one large electorate with as many people included as possible (as Stewart warns in a 1964 dissenting opinion). Given this impossibility, instead the impulse has been towards proportional representation. Although it has yet to be instituted in any significant manner in the United States, "strictly majoritarian at-large systems that consistently exaggerate the winner's seat share have come under attack in a variety of contexts" (Cain, ibid., 137). For populists, government should represent its society as closely as possible. Proportional representation thus would be ideal. In addition, it is ultimately more "fair" in terms of allocating governmental power, basing power on direct participation in government rather than on simple opportunity: "proportionate interest representation disavows the pluralist conception of fairness, which falsely assumes equal bargaining power simply based on access" (Lani Guinier, in Dan Lowenstein, Election Law, 197).

Campaign finance reform encompasses the populist impulse to equalize individuals. Limiting money would move the political system towards greater equality of individuals. Determining intensity of preferences is discouraged and instead all are granted the single opportunity to support or oppose. Regulating money, the argument goes, will keep representatives focused on the public good. Perhaps more importantly, interest group influence will wane as money's role in politics decreases. Though pluralist theory is more readily willing to acknowledge that there are differences in power and that these will inevitably be reflected in campaign contributions, interest groups are maligned by populists. They criticize pluralist theory for ignoring structural inequities in society: some groups may lack organization and group leaders may or may not accurately speak for the group. The only way to achieve equality – a central goal of populism – is to focus on individuals, which are more equally endowed with political strength. Whereas the pluralist argues that the group is the best form in which to aggregate preferences, the populist counters that the group distorts individual choice and unfairly preferences some individuals over others.

Public financing too is intended to equalize the political playing field and increase participation. Justice White, undoubtedly in favor of regulating money, further explains this motive: "in the context of the public financing scheme, the apparent congressional desire [is] that elections should be between equally well financed candidates and not turn on the amount of money spent for one or another" (White, FEC v. National Conservative PAC 1985). Both schemes – leveling up or leveling down - are meant to increase the number of potential candidates and encourage more citizen-legislators. The costs of campaign finance regulation, the loss of information and the level of public discourse, are irrelevant. Populism presupposes an already qualified public in holding office (so there is no need for better and greater information) and preferences are seen as more alike than not, so "diversity of speech" is hardly a prominent goal. Scalia's dissent in Austin illustrates an alternative (Madisonian) understanding of government: "the premise of our system is that there is no such thing as too much speech."

The problems with regulating money hardly surface when taking the populist position. Scalia's dissent emphasizes that policies regulating money are essentially prescribed by an unchecked majority: "the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe." A majority is essentially voting out a minority's right to speech. Kennedy similarly urges the Court, "the interest touted by the majority is the impermissible one of altering political debate by muting the impact of certain speakers."

Open primaries too, are intended to increase participation in the electoral process and change the content of political discourse. Rousseau's assumption of one interest, one general will, is sought here; in contrast to the First Amendment goal of greater diversity in opinion, populists would like to smooth out factions and dissent, achieving a position where the median voter dominates (Bruce Cain). The state's interests in California's Proposition 198, for instance, are held to be the reduction of party factionalism and partisan argument. Instead of "ambitions counteracting ambitions," one voice is sought, that of the median voter.

The harm to political parties in open primaries is also irrelevant to populist notions of democracy. The fear that crossover and strategic voting will render party labels meaningless is not a concern for the populist interested in self-government. A competitive party system is hardly worth preserving for populists, which instead see intermediary bodies as obstacles in the way of a direct, pure connection between the state and the citizen. Whereas pluralists view intermediary bodies as transmission belts, vehicles to move peoples' opinions and preferences into the government, populists see them as venal forces, places where the general will is distorted and corrupted.

Initiatives again move away from the representative ideal and towards self- government. Majority preferences reign and minority rights are adequately protected by an institution subject to – at least in California – popular control at the state level. Regardless of content it seems, the "will of the people" transmitted through initiatives is somehow more pure than policies deliberated on by a state legislature. The Court too at times has echoed this sentiment: "Referenda are held on issues, not candidates for political office. The risk of corruption perceived in cases involving candidate elections, simply is not present in a popular vote on a public issue" (Bellotti v. Connolly 1983). Term limits, finally, are populist designs to reconnect the legislature with the people. A professionalized legislature should be thrown out, not valued, as a corruption of self-government. Though legislative competence may deteriorate, replacing representative democracy with a more direct variety is of greater importance. A weakened legislature is either an empirical impossibility for populists or else of little concern. Without checks and balances, the majority rules, another populist goal.

Yet perhaps the benefactors of populist measures have been precisely the special interests themselves. Teresa Dale Pupillo writes that the general population seems relatively indifferent to the benefits of the Sunshine Laws, and instead interests groups and the press take advantage of the access to public files. The initiative process – at least to an extent – has been overrun with big money and out-of-state interest groups. Term limits may just increase the pace of a professional politician's career, rather than replace him with a concerned citizen. Despite two decades of finance regulation, money seems to play as a great a role as ever. Perhaps the problem comes from the populist urge to just substitute, rather than improve. Most of the reforms seem bent on pushing the old out and creating room for fresh faces and ideas; yet new bodies in old institutions makes for only more of the same.

Individual and Group Rights: Necessarily in Opposition

The Voting Rights Act of 1965 established simply the right to an individual vote for all races. Two cases in the 1960s asked for a more precise measuring: how were votes to be weighted against one another? Was a vote in a densely populated district equal to a vote in a thinly populated district? Baker v. Carr (1962) held that challenges to malapportioned districts (districts of unequal population) were in fact federally justiciable. Two years later in Reynolds v. Sims (1964) the Court imposed the "one person, one vote" standard when Alabama voters challenged malapportioned districts as violations of the Equal Protection Clause. Striking down the district lines, the Court established that both houses in state legislatures be of mostly equal population.

Warren's opinion in Reynolds stressed that the rights protected by the Equal Protection Clause are "individual and personal in nature." Legislators, he argued, are elected by "voters, not farms or cities or economic interests." An individual vote pooled with one thousands others is fundamentally different from and inferior to a vote pooled with one hundred thousand votes. His opinion essentially legislated a particular type of representational scheme, one that in fact undermined the system which elects the Senate: allocating the same number of representatives to varying numbers of constituents.

Avery v. Midland County (1968) extended the one person, one vote rule to local government: "We…see little difference, in terms of the application of the Equal Protection Clause and of the principles of Reynolds v. Sims, between the exercise of state power through legislatures and its exercise by elected officials in the cities, towns and counties" (White, Avery). A similar case was heard a year later that reaffirmed this principle. In Kramer v. Union Free School District No. 15 (1969) the Court struck down a New York law that limited the franchise to those "directly affected" by the relevant elections.

Problems with the practical application of the Reynolds rule (rather than its theoretical implications, I would argue, which are sound) moved the Court to establishing a "group right." First, an overemphasis on individual rights inevitably leads to majority rule, thus endangering minority rights. Local governments are often specialized types of legislatures whose decisions affect some more than others. Yet under the Reynolds rule, those who may be unaffected by a decision are nevertheless still entitled to participate. Harlan's dissent in Avery recognized the problem that equally weighted votes (a procedural requirement) may lead to unequal outcomes: "application of the Reynolds rule to such [specialized] local governments prevents the adoption of apportionments which take into account the effect of this specialization, and therefore may result in a denial of equal treatment to those upon whom the exercise of the special powers had unequal impact." Two cases, Ball v. James (1981) and Salyer Land Company v. Tulare Lake Basin Water Storage District (1973) recognized that votes should not always be equal in upholding limitations on the franchise.

Second, though initially an individual right to vote seemed adequate in granting the franchise to individual African-Americans in the South, it proved to be inadequate in providing for "fair and effective representation" of minority groups (Reynolds). The Reynolds rule only asks whether there are an equal number of voters and people. Yet often the difference between the two is sizable: some may be ineligible to vote; the lower class and minorities are less likely (Lowenstein, 118). Stewart's dissent in Lucas v. 44th General Assembly of Colorado (1964) foreshadows the theoretical perspective that would guide future Court decisions. He argued that population was but one of several factors that should be considered in districting decisions and likewise, an equal weighing of voters is but one theoretical take on representation. Representative government, for Stewart, "is a process of accommodating group interests through democratic institutional arrangements."

Because of its inadequacies in protecting group interests, the Act invited attack on representational schemes that minimized or maximized group influence. Section five of the Act required that before any changes in "voting qualifications and procedures" went into effect, they had to be approved by either the Attorney General or the U.S. District Court. In Allen v. State Board of Elections (1969) the Court expanded its use of the section to look at voter dilution claims in addition to simple claims of vote denials. Justice Harlan urged the Court to remain focused on individual rights in accordance with what he felt the Act's original purpose to be. The fourth section of the Act gave the vote to African-Americans, he argues, and absent disenfranchisement then, Allen simply increased the judiciary's role unconstitutionally. "The decision today… requires…the Court to determine whether various systems of representation favor or disfavor the [African-American] voter" (Harlan).

Allen thus recognized a voter dilution claim under Section Five and "established the principle that the act extends to electoral mechanisms that affect the ability of minority voters as a group to make their votes count" (Lowenstein, 149). The Court bolstered the group right in Beer v. United States 1976 in declaring the non-retrogression principle which encouraged the drawing of majority-minority districts. The constitutionality of majority-minority districts was reaffirmed a year later in United Jewish Organizations v. Carey (1977) in which a Hasidic community filed suit after it was geographically split between two Senate and two Assembly districts to create a majority district of black voters. The Court ruled that the use of quotas did not violate the 14th or 15th amendment and furthermore distinguished between invidious and benign discrimination; there is no finding that the State "acted with the invidious purpose of discriminating against white voters" (Stewart). Efforts to increase group influence could trump the individual right to an equally weighted vote.

Going further in departing from the simple Reynolds rule, the Court first established the right to a meaningful vote in Davis v. Bandemer (1986). In 1982 a group of Indiana Democrats filed suit against the state, arguing that the 1981 reapportionment plan (drafted by a Republican majority) violated their 14th Amendment right. The Democrats urged the Court to recognize that their right to group influence had been violated. Based on a one person, one vote count, the Democrats implicitly argued, their group representation was inadequate: despite receiving 51.9% of the vote in House races and 53.1% in Senate races, they only won 43 of 100 seats in the House and 13 of 50 seats in the House. An individual right to vote inadequately provided for "fair and effective" representation. Secondly, the Democrats argued that "Democratic voters over the State as a whole, not Democratic voters in particular districts, have been subjected to unconstitutional discrimination" (White).

Acknowledging the tension between individual and group rights – "district based elections hardly ever produce a perfect fit between votes and representation" – the Court ruled that the Democrats indeed had a justiciable claim (White). However, the burden on the group in showing an unconstitutional gerrymander was heavy. It had to show that there was an intent to discriminate as well as a harmful effect, a pattern of discrimination rather than an isolated political defeat, and the Court affirmed that there was no constitutional right to proportion representation (which it also claimed earlier in UJO). Electoral success was not indicative of political power either: "we cannot presume that a candidate will entirely ignore the interests of those voters" and if a group had the "opportunity to participate and elect," then the district lines are presumed constitutional (White).

Nevertheless, the test of a constitutional gerrymander was expanded beyond the one person, one vote rule. Writing separately, Powell endorses the expansion: "since the essence of a gerrymandering claim is that the members of a political party as a group have been denied their right to 'fair and effective representation,' Reynolds I believe that the claim cannot be tested solely by reference to 'one person, one vote'" (Powell). In direct contrast to Warren's opinion in Reynolds, he writes that "groups of voters elect representatives, individuals do not." Eager to show that a group right claim is consistent with the Reynolds rule, he argues that in fact Reynolds recognized various factors that should guide redistricting, not population alone: "for example, the Court observed that districts should be compact and cover contiguous territory."

More significantly in 1986, the Court heard the first case after the Voting Rights Act was amended in 1982: Thornburg v. Gingles. The amended act overturned the "intent" requirement announced in Mobile v. Bolden (1980); showing effect was now enough to challenge a districting plan. An increase in the number of black representatives (as well as litigation) is attributed to the newly amendment act. The decision undoubtedly favored the creation of race-conscious districting, an outcome not everyone on the Court was pleased with. Having moved the opposite direction from Reynolds, the new scheme advocated by the Court was of proportional representation. It was not enough for a group to have the opportunity to participate, as early decisions claimed, but instead "electoral success has now emerged," O'Connor argues in a concurrence, "as the linchpin of voter dilution claims."

Gingles is by far a pivotal decision with a huge effect, yet not without its critics. Justice Thomas argues in a dissent in Holder v. Hall (1994) that Gingles expanded the rights of the group at far too great a cost to individuals. Any decision made by the Court regarding the Act will inevitably be based on its preferred theory of representation, he argues. The Court had ultimately made an arbitrary decision to advocate single-member districts (over multi-member) and proportionality as a guiding principle: legislative decisions, rather than judicial, that could be – and were – overturned at the Court's choosing.

The move to a group right sought to improve the representational inadequacies of an individual one. Yet a group right is subject to the same practical weakness as an individual one. Evidence shows that it is party, not race, that is the best predictor of whose interest a representative will pay attention to, rather than the racial makeup of the district (lecture, 4-19). In addition, it is based on empirical propositions that are subject to debate. As Thomas argues in Holder, the Court's scheme advocated in Gingles is premised on the notion that all members of a racial group think alike and hold similar interests. "Our voting rights decisions," he fears, "are rapidly progressing towards a system that is indistinguishable in principle from a scheme under which members of different racial groups are divided into separate electoral registers and allocated a proportion of political power on the basis of race" (Thomas).

The principles advocated here were used by O'Connor in Shaw v. Reno to reopen up race-conscious districting to constitutional review. Shaw recognized a new kind of constitutional claim, one based on appearances. A group of whites brought suit that the districting plan did not injure their electoral success but instead "their right to participate in a color blind electoral process" (O'Connor). Their claim was based implicitly on the individual right first established in Reynolds. Yet the movement from an individual right to a group right was motivated by and based upon a practical problem of representation; the movement backwards seems motivated by theory alone. O'Connor argues against a group conception of representation, claiming that racial gerrymandering merely reinforces the belief that members of the same race vote alike and may encourage representatives to only pay attention to members of his race. Reapportionment, then, "reinforces racial stereotypes and threatens to undermine our system of representative democracy" (O'Connor).

French political culture is formed by Rousseauean ideals. Few join intermediary bodies (French union membership is one of the lowest among West European states). In an interesting example of how theoretical conceptions guide behavior, in the early 1990s there was a growing sentiment that schools were much in need of reform. Despite that control over education had been devolved to the regional level, a massive protest was mounted in Paris. In France, the idea still prevails that the citizen is connected to the state much more than he is connected to his regional or local government or interest group. Rather he is a member of the nation-state as a whole.