Setting Goals for Political Reform

November 6, 2013
posted by Bob Bauer

Joe Nocera has put out a call for reform and opens the discussion with a few that he favors. Tying his list together is his hope to “invigorate the electorate” and encourage “more responsive, and less extreme, political candidates.” These different goals can pull in different directions. An electorate is often invigorated by negative campaigns—which is not to say that candidates have to be extreme in order to be negative, or that only negative campaigns are invigorating, but the connection is not unknown, either. And there is also nothing to suggest that extreme candidates, however Nocera defines “extreme,” are unresponsive. Many are responsive to constituents that reward them for this type of behavior.

Of the different reforms Nocera lists, two illustrate the reasons why some reform programs open with hope and end in frustration, and others might stand a chance.

First there is his advocacy for open primaries. Nocera suggests that closed party primaries encourage extremist behavior, particularly in the Republican Party. He believes that California has led the way with its “open primary” system, which trims the field to the top two vote-getters, regardless of party, who then compete in the general election. Citing a recent article by Adam Nagourney of the New York Times, he suggests that “this reform is one of the reasons California’s legislature has become less partisan and more productive”—and he is confident that “chances are good” for the same success at the federal level.

As others have noted, the Times article Nocera relies on overlooks research which casts doubt on this thesis. There are scant grounds to suspect that open, “top two” primaries reduce polarization. See, e.g., Thad Kousser et al., Reform and Representation: Assessing California’s Top-Two Primary and Redistricting Commission (Aug. 27, 2013), available at Nagourney passes quickly over the one fact that more than anything else explains relief from gridlock in California: one-party (Democratic) majorities in the legislature. Maybe in time the top two system will prove itself, but as of now, the arguments for it rest on an intoxicating dose of wishful thinking.

Then there is Nocera’s suggestion that more anger could be drained out of politics if we instituted term limits on Supreme Court justices. He notes approvingly a pending proposal to limit justices to one 18 year term and, on a staggered schedule, this reform would mean nominations to the Court every two years. Every president could expect to nominate justices; it is hoped that the regularity of the vacancies and the limited terms would stave off or moderate the confirmation tempests.

This is a sensible reform but it is not certain to yield the outcome Nocera is looking for. Any given nomination could fall directly within a period when the addition to the Court would make a difference to a case or term on the horizon that has inflamed partisan or ideological feeling. And if the politics of the country is otherwise turbulent, the rotation of Justices on and off the court every other year could be an irritant rather than a balm. Biennial Supreme Court nominations could become an irresistible addition to the partisan squabbles.

There remains a good case for term limits for Justices. Lifetime tenure for Supreme Court justices raise a legitimate question that term limits decisively answer: the terms are too long for positions of exceptional authority and influence. Nocera could be right that term limits might help with general political distemper—maybe at the margins or in some circumstances. But we can’t be sure and we should not bank on it. It is far simpler to conclude that high office should not be held—and this much power should not be exercised—for a lifetime.

The effects of political reform habitually defy predictions. The more complicated the objective, the less likely legal reform will achieve it. Simplifying the goal, which requires modesty in aim and expectation, makes it more likely that the reform enacted will accomplish the goal intended. If it is believed that Supreme Court Justice’s terms are too long, they can be limited. The reasons for a politics turned sour and ineffectual are many and complicated, and the claim that a specific structural reform can solve that problem is neither supported by historical experience nor, in the case of the “top-two” primary, the evidence assembled to date.

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