Wednesday, May 07, 2008


Not many people outside of academia these days remember Lani Guinier. She was President Clinton's ill-fated first nominee for attorney general. She was one of at least three academics (Robert Reich and Donna Shalala were the other two) that President Clinton named to his Cabinet, which surely must be some sort of record.

Her nomination ran aground when people began looking into her work. She was a democratic theorist who was dissatisfied with the way American elections are typically conducted – people vote for one candidate, and the candidate who gets the most votes wins. As obvious as that system sounds, there are many other ways to run an election. One could allow people to rank candidates for example, with second or third rankings counting, but less than the top ranking. Or one could have a European Parliament- or Israeli-style proportional representation system, where people vote for parties, and parties get seats in parliament in the same proportion in which they got votes. She argued that many communities, particularly minorities, could not get meaningful representation in our longstanding first-past-the-post system. It turned out that a lot of Americans didn't think much of that idea, and her nomination was quickly dropped.

I thought of her as I watched the Democratic primary process unfold this year. The reason Senator Clinton was able to hang on as long as she did was that Democrats toward their convention delegates in primary states by proportional representation, rather than through the winner of a primary getting all of the state's delegates (which is the way the Republicans generally award theirs). This was done to make the election more "fairly" represent the sentiments of Democratic voters. But it led to lots of unintended consequences, in particular the inability of Senator Obama to drive Senator Clinton from the race.

This process is suggestive of a major fallacy in how many of us think about politics, including but far from limited to Professor Guinier. There is a naïve belief that there is some perfect Rousseau-type public will waiting to be discovered. Elections need to be organized so that they will detect it, so that this public will can be implemented.

This belief is flawed on at least two counts. First, it is not obvious that the momentary public will ought to be implemented in anything like its totality. It is the function of the Constitution, and its explicit enumeration of rights, to prevent just such a thing. (Some of us paid attention in our high-school government classes, some of us didn't.) Second, it is impossible in any event to even define, let alone detect, some conception of the public will that everyone would agree on in advance. The result is that rejiggering election laws lead to unintended consequences. Elections are held on the premise of solving a series of public problems, the problems fail to be solved in part because they are far beyond the ability of public officials using force and zero-sum rearrangements of wealth to solve them, people with unconventional views (who were often most insistent to begin with that government could solve these problems) find that their ideas are chewed up in the maw of conventional politics and blame this for the failure of politics, and so the system has to be "change" yet again. (Think of how often a country like Italy has changed its election laws.)

In extreme cases, people become so disenchanted with the inability of the messy system to achieve the results that they want that they cast their lot with extremists who promise to get us "beyond politics." They promise to worry only about solving problems, and not to be tied to any particular ideology. This of course all too often leads to disastrous consequences. European-style extremism has not found very fertile soil in the United States or in Great Britain, where the first-past-the-post system is also used. To be sure, much of the failure of various totalitarianisms to take much root here has to do with our nature -- Americans temperamentally simply don't cotton to the politics of mass movements and higher universal purpose. We take our cue from the Federalist papers, which warned us about the constant dangers of faction hijacking the government machinery to attack the people's liberty. (That the language of getting beyond politics is so prominent in the American left these days is disturbing for these reasons, but that is another story.) But our system, which goes out of its way to avoid having every view, no matter how extreme, get a seat at the table of power forces public officials away from these extremes. This forced centrism has probably done a lot to limit the growth of government that has so plagued other advanced societies. Even though my views tend toward the extreme on matters of personal liberty, we would be fools to change it.



Anonymous Anonymous said...

Honestly... I think our country is in a bad condition with these elections. We're counting on a woman, who very often lets herself get emotionally flustered in front of the public during debates (what do you expect from a woman running for president of the US?), Obama, the man who thinks that he will magically change everything, or another republican (in which our country DESPERATELY needs to realize that another republican is the last thing we need.) If some terrorist had just straight up assassinated George W. during his first term in office, our country would probably be in a much better situation than we currently find ourselves. But of course, being the thick-headed, Flag waving, superficially superior Americans that 80% of this country's citizens think that they are, we elect this monkey of a president AGAIN for a second term. I pray for a downfall of all the corrupt politicians who exist, not JUST George W. Bush, but simply using his term as a fine example. I'm just so tired of this ongoing nonsense and the increasing obliviousness of the average American when it comes to politics. Stop voting because you have redneck pride, or a load of money more than everyone else, vote for the GOOD of this country for once. We wanted to impeach Bill Clinton for screwing around with Monica Lewinsky? How about publicly lynching the idiot who sits in the chair as of now, everyone who blindly supports him, and broadcasting THAT on CNN... Guaranteed most watched cable broadcast in the world, EVER, and if that doesn't tell you something about how people feel about our "leader", then you should be eliminated right along with him.

4:30 PM  
Blogger Evan said...

Stop voting because you have redneck pride, or a load of money more than everyone else, vote for the GOOD of this country for once.

The whole reason we have voting is because we disagree on what the good of the country is. I suspect that is how most people vote, not just you.

5:33 PM  
Blogger Joshua said...

Ilya Somin at Volokh Conspiracy has written a few papers (and accompanying VC posts) dealing with voter ignorance of political issues and the political process, and how that ignorance impacts our elections. That was the first thing that came to mind when I read your post and anon's comment - why should we be interested in trying to divine the "popular will" when a vast number of voters, if not a vast majority of them, don't even necessarily know what they want in who they're voting for (and according to Somin, often base their voting decisions upon little more than gut feelings)?

12:34 AM  
Blogger Evan said...

Joshua, I have been collecting such stories, among other foibles of democracy, here.

3:56 PM  

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