Notes on a Theory…

Thoughts on politics, law, & social science

Posts Tagged ‘Mandate

An Electoral Mandate is a Claim, Not a Fact

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From four decades of intensive research on voting behavior, political scientists know a great deal about the determinants of individual voting choices.  We know much less, however, about elections—the institutions in which these individual choices take place.  This is a serious shortcoming, for it is elections that link voters to governance.  The nature and quality of this linkage has long been a primary concern in the study of politics, especially democratic theorists.  To some, the only purpose of elections is the permit voters to choose among political leaders; in short, that voters cannot or should not control the choice among politics in any more direct way.  Many others, finding such limited control insufficient for a democracy, seek to show that elections can and should have policy meaning if subsequent government programs are to be seen as legitimate.  [snip]

The idea of a mandate…plays a major role in the justification of elections as institutions and in the effort to construct explanations for particular election results.  It helps also to reassure citizens that their primary forms of political participation–the vote-had an impact on the policies to which they will be subjected.

These words were written by Marjorie Randon Hershey in 1996.  They are, admittedly, a bit disturbing.  I’d like to believe things have improved since that time, but I’m not so sure.  Since the 1950s (at least) political science has looked to individual formal decisions as the key to understanding politics, and often towards some internal factors, be they interests, attitudes, or ideas, as the causes of those decisions.  Votes, court rulings, roll calls–these are the sorts of things political science has focused on. Things which fit comfortably with this sort of approach were foregrounded, things which did not were obscured.  While plenty of criticisms of this approach have been voiced, the basic model has remained.  A certain idealized view of democratic elections serves the same role for political science does for markets–it is the starting point no matter how much research suggests it is not  a very useful way of making sense of the world.

What’s more, there is a presumption–especially in the field of judicial politics–that elected officials were presumptively legitimate, whereas judges, are not, especially when they challenge the decisions of elected officials (i.e. when they exercise judicial review to strike down a law or executive action) .  That’s not true on either account.  Elected officials may find their legitimacy challenged, and judges often act to strike down laws without controversy.   This notion confuses democracy as a normative idea with democracy as an empirical explanation.

The standard move for a political scientist when confronted with the idea that an idea is an essentially contested concept, one that necessarily blends normative and empirical dimensions, one that, as a result, cannot be settled with facts, is to abandon the idea.  That which cannot be settled should be abandoned for terms that can be operationalized.  But this means avoiding talking about things that political actors take very seriously.  As Hershey says:

No matter how difficult it may be to agree on a definition of mandate or to locate one in practice, it remains a powerful concept in political discourse.  Politicians claim mandates in order to legitimize bold actions, journalists use the term frequently in interpreting elections, and scholarly studies continue to focus on various aspects of the idea of a mandate.  In short, mandates are a central democratic myth–“an unquestioned belief held in common by a group of people that gives events and actions a particular meaning.”  As a myth, the idea of a mandate gives meaning to election results and thus has a potentially important effect on the abilities of administration to govern.

I started to think of this excellent piece as I read various discussions of what the meaning of the upcoming presidential election would be from a few left leaning sources. While they disagreed on the answers, all asked the same questions–would there be a mandate, what would its content be?  Lost here is that a mandate is not a thing that exists, like a chair or an apple, but a claim.  It results from politics, as politics is largely a contest of claims.

So the better question is, what claims will be made in terms of the meaning of the elections, and which ones will be successful?  How would the two main parties interpret it, and how would the media treat those claims?  For what it’s worth, I think the right largely appreciates this. I doubt they would ask these questions.  If Romney were to win, they will claim it’s a mandate for conservative policies.  If Obama wins, no matter how large, they will claim it means little.  How about the other side?  I doubt the Democrats will claim any victory, no matter how large, is a mandate for liberalism.  Those who hold the reins of power in the party have long been neoliberals.

As a result, no amount of polling evidence would lead to voters being seen as demanding some liberal outcome.  Any such claim would not be seen as ‘reasonable’, but rather ‘political,’ in large part because it would be outside the bounds of what either party would accept.

This is why I get frustrated with repeated efforts to show that Americans don’t support this, or American oppose that, by those who seek to challenge far right positions or bipartisan consensus.  It quite simply doesn’t matter.  Either activists mobilize those opinions by engaging people to hold them to act, which has to be something more than voting, or such opinions will have no impact. Citing polls won’t change that (although polls can and should inform efforts to mobilize people).

Scholars and activists would do well to understand that democracy isn’t a particularly useful analytic framework, but that it is a powerful myth, that can be mobilized.

Expanding the Boundaries of the Possible: The Mandate

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Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.  

Jack Balkin has a piece on The Atlantic that didn’t get the attention it deserved.  Called From Off the Wall to On the Wall: How the Mandate Challenge Went Mainstream, the piece focuses on how legal arguments move from the fringe to common sense.

The changing perception of the individual mandate is an example of one of the most important features of American constitutional law — the movement of constitutional claims from “off the wall” to “on the wall.” Off-the-wall arguments are those most well-trained lawyers think are clearly wrong; on-the-wall arguments, by contrast, are arguments that are at least plausible, and therefore may become law, especially if brought before judges likely to be sympathetic to them. The history of American constitutional development, in large part, has been the history of formerly crazy arguments moving from off the wall to on the wall, and then being adopted by courts. In the process, people who remember the days when these arguments were unthinkable gape in amazement; they can’t believe what hit them.

I’d go farther, and suggest that this is an example of the one of the most important features of American politics.  But the sad thing is that both political science and our general political discourse tends to ignore these questions. Instead, they ask: (given the boundaries of what’s possible) how is choice made?  But the question of what is possible is far more important than the choice itself.  As political scientist E.E. Schattschneider reminded us a long time ago, “The definition of the alternatives is the supreme instrument of power,” yet we’ve rarely listened.

Balkin has been asking these more important questions for some time.  I’ll just sketch the argument here.

The basic idea is to understand the roles of several key actors.

1) Intellectuals.  The role of intellectuals is to develop ideas that are considered off the wall.  Conservatives have long understood this which is why they built an infrastructure that allows intellectuals to do this and that creates networks among them. These have to be willing to do so without worrying about their acceptability, or they will simply be reinforcing the status quo. (This is why tying think tanks and the like too closely to either politicians or funders is a bad idea.)

2) Social movements.  Movements are one of the most important drivers of change, but they work long-term, through cultural change, that is, “from the bottom up”.  Obviously, conservatives were mobilized against the mandate, but Balkin argues that social movements work on a much longer time line.  There was not enough time to move arguments that the mandate was unconstitutional from the fringes to an acceptable legal claim this quickly.

3) Political parties. When a party gets behind a claim, it moves it quickly to ‘on the wall.’ “[W]hen an entire political party gets behind a constitutional argument,” Balkin says, “almost by definition the position has become mainstream.” Needless to say the unity of the Republican Party makes this a lot easier.

4) Media. The media tends to reflect the political parties.  That is, if one party makes a claim, the media will treat it seriously. This is true for institutions like Fox News, but it’s also true for the media in general.  Journalistic conventions don’t allow the media to challenge these sorts of claims, when they are taken seriously by one (or both) of the parties. This has a tendency to reinforce the role of the parties.  (Balkin here parallels the arguments of media scholars – see for example Jay Rosen’s classic post detailing Daniel Hallin’s arguments, here.)

5) The Courts.  Once a position has become ‘reasonable,’ judges are willing to give them a hearing, and once lower courts, especially circuit courts, are willing to accept an argument, this lends respectability before the Supreme Court (not to mention beyond the judiciary).

Of course, if you were to look only at the choices of courts, or the Court, ideological splits would go a long way towards explaining those choices.  It’s true that the president, Congress, or the public have no formal ability to reverse decisions.  But judges care about what’s reasonable, they take things for granted, and they reconsider things they previously took for granted.

I do have one objection. Balkin’s argument largely avoids confusing democracy as a legitimation with democracy as an explanatory concept. But see here:

When establishment politicians — who, after all, have to stand for election and don’t want to be thought out-of-touch to their constituents — get behind a constitutional argument, they often help move it forward quickly.

The problem here is that there is plenty of reason to think that politicians aren’t driven by such concerns.  There are often large gaps between public opinion and policy, both foreign and domestic.  The Republican Party has demonstrated that marching away from the center doesn’t automatically lead to electoral defeat.  Reasonableness is an elite phenomenon.  The belief that one can infer popular beliefs from institutional outcomes (i.e. ‘democratic efficiency’) is generally false.

Written by David Kaib

June 13, 2012 at 1:17 pm

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