Legal Commentary

What Kind of Guidance Do We Want Shadow Commissions To Provide?

By Jack M. Balkin

Chris Elmendorf, who has written some of the best work on institutional design in the field, has offered a thoughtful response to our extended riff on the merits of the Carter-Baker Commission's voter ID decision. We agree with much of his nuanced and smartly critical post. We agree fully, for example, with his points on the right uses to make of experts. More generally, we think that Elmendorf overstates our dissatisfaction with the Carter-Baker Commission: one of us has had positive things to say about the Commission's role, and the other has acknowledged its usefulness despite harboring stronger reservations about the Commissions design and decisionmaking process.

Nonetheless, Elmendorf's post helps us dig deeper into the question of how best to design "shadow institutions." He identifies key questions of design, but here is where we detect difficulties in his analysis. These difficulties explain why his judgment is more favorable than ours on the Carter-Baker Commission's ID handiwork.

If one is to offer courts a guide, the question is precisely what kind of guidance one wants. Elmendorf argues that the Carter-Baker Commission was the right kind because its goal was to tell us what was "reasonable." A reasonable judgment is one he takes (correctly) to require some normative assessment. He then argues that a "judgment of reasonableness" coming from a group composed of roughly equal numbers of Republicans, Democrats, and independents (none holding office at the time) is "prima facie deserving of weight."

Our main disagreement turns on Elmendorf's definition of "reasonable." On the one hand, he seems to relate reasonableness to what is necessary to establish bi-partisan agreement. On the other, he injects heavy normative content into the term, using it to delimit the sphere of sound policy. Carter-Baker satisfies the first definition, but not, in our view, the second. And we worry that the two have been conflated in Elmendorf's analytical framework.

We think that policy must be evaluated by the quality and persuasiveness of the evidence needed to support it. To get to a reasonable political result, Carter-Baker sacrificed the precondition for supportable, sound policy. We are unwilling to bless a decision as "reasonable" when it is rendered without due regard for the empirical evidence. A pure political compromise can be produced without coming to grips with the empirics; a sound one cannot.

Elmendorf further argues that because the Carter-Baker Commission represented a "reasonably diverse cross section of reasonably informed observers who lacked the immediate dependencies of elected party members," it could offer a normatively reasonable view on voter ID. Perhaps that is so with regard to most issues. But electoral reform is, of course, an area where the preferences of politicians can be quite different from the preferences of everyday voters. Here the decision was driven by two leaders deeply steeped in party concerns, and most members of the Commission had strong partisan ties. Was their decision normatively reasonable, guided by a discernible and defensible principle? Or was it simply a decision about what constitutes the middle political ground?

If the Carter-Baker Commission's decision was simply the product of political bargaining, it is not entitled to the moniker "reasonable," in our view, unless we use that term as a synonym for political moderation. Our own instinct is to think that a diverse group of partisans might have different views than a diverse group of everyday citizens, or even the considered judgment of policy experts. Assessments of what will play politically may be different from normatively sound judgments. Breaking partisan deadlock is not the same as devising sensible policy. These instincts are all captured by the phrase that is often juxtaposed against the term "politics": "good governance."

Elmendorf, rightly unhappy with Crawford, holds the Supreme Court accountable. The plurality goes wrong, in his view, by taking up the Commission's balanced "policy" proposal and weighing only the state (ID) rather than the voter (registration) side of the proposal. That is correct as far as it goes. But the deeper problem was not that the Court adopted only half of Carter-Baker's compromise package. The deeper problem is that in a case in which partisanship was an issue, the Court was looking for a reasonable -- meaning, politically neutral -- way out, and Carter-Baker offered it, but only with bad policy trailing in its wake. It is not clear how Justice Stevens, writing for the plurality, could have the advantage of the one and avoid the other.

Lest we overstate our differences with Elmendorf, we should add that neither of us wishes to claim there is any such thing as a pristinely objective process. Nor do we wish to downplay the importance of paying attention to the political feasibility of a reform proposal. We both recognize that "crass" political concerns necessarily play a role in any reform debate. The key, as one of us has explained in detail, is to manage the politics without being overwhelmed by them -- to fold enough politics into an institution's decision to inoculate it against politics without risking a full-scale infection. As that essay argues, there is a difference between a commission that includes some partisan members and a commission dominated by them.

For all of these reasons, we hoped for more from the Carter-Baker Commission on the voter ID question. We hoped for a decision that didn't just tell us where a political bargain could be struck, but offered sufficient support for its arguments (both in terms of empirics and principle) to change the conditions in which bargaining takes place. At bottom, our worry is that the Commission -- both in terms of membership and process -- was built for bargaining rather than reflection about voter ID.

To be sure, Elmendorf is right to insist that a bipartisan commission can do good, even with regard to election reform. A commission evenly spread across the partisan continuum should be a good judge of what would constitute an intolerable outcome for one political faction or another, and its decision can cast doubt on egregiously partisan stunts. These assessments, of course, should help the Court do part of what Elmendorf wants it to do -- police partisan outliers and determine minimum standards of acceptability. But the Commission did more than call fouls on the voter ID debate; it tried to specify where the game would end by proposing what it thought was the right answer.

In sum, we think we should aim higher here than Carter-Baker's voter ID decision, looking to shadow districting commissions to produce sound decisions, not just policies that can be sold to a bipartisan audience. We could, of course, convene any number of shadow institutions to tell us precisely where a partisan compromise can be had, and they would surely provide some guidance to the Court in policing outliers, as Elmendorf shows. The question is whether that game is worth the candle. If shadow institutions are to serve as a guide, we?d like to see them issue sound decisions -- politically aware, of course, but empirically and normatively defensible as well.

If, however, shadow institutions are built for bargaining rather than reflection, then we want to be sure that everyone is aware that their purpose is to bang out a crass political deal, not to offer up a sound policy proposal. Otherwise, there is a risk that -- as we fear occurred here -- people will treat decisions that are political saleable as "reasonable" in the sense that we understand that term.

Full post as published by Balkinization on June 04, 2008 (boomark / email).