A response to Heather Gerken: Why the politics of tolerant pluralism need the legal institutions of federalism

Heather Gerken has a characteristically thoughtful response to my post on the “federalism insurance premium.” Heather agrees with me that willingness of the party in power decentralize controversial issues is weakened by each side’s intolerance toward ideological disagreement. She also agrees that more tolerance would be a good thing: When Democrats hold the Presidency, they should allow Red states more latitude to adopt conservative policies, and vice versa.

Heather disagrees with me, however, about whether constitutional conventions and institutions of federalism are relevant solutions to this problem. In her words,

“… the give-and-take has more to do with politics than institutions. Put differently, it’s not federalism that matters here, but pluralism. And a pluralist system only flourishes when both sides are willing to live and let live…”

The core of our disagreement is, in short, about whether and how legal institutions promote pluralist politics. After the jump, I will explain why I think that Heather is mistaken to contrast institutions and politics as if they are distinct mechanisms for promoting pluralism. As I have argued in yet another post, politics depends on – indeed, are defined by – legal institutions. Saying that achieving pluralism is rooted in politics, not institutions is like saying that scoring touchdowns is rooted in athletic ability, not the rules of football. Of course, the sort of athletic ability needed to score a touchdown depends on the rules of football. Likewise, the particular sort of politics needed to entrench a convention of decentralization depends on legal institutions. Even tolerant voters and politicians need some assurance that their tolerance will be reciprocated by their rivals before surrendering their cherished policy priorities for the sake of allowing the rivals to impose dissenting subnational policies. Without some credible commitment of reciprocity, such tolerance brands the politician who practices it as a chump, not a pluralist.

Legal institutions allow such politicians to make such credible commitments such that they can be assured that their forbearing to centralize power when they control the presidency will later be rewarded by their rival's similar forbearance. To see this relationship between legal institutions and political pluralism, however, it helps to focus on a specific example.

1. Why is "tolerance" without institutions insufficient to protect pluralism?

Consider, for example, the question of whether a university should be permitted to use a "clear and convincing evidence" standard to determine whether or not a constituent of the university (student, staff, faculty, etc.) committed sexual assault against another constituent. As I have argued elsewhere, whether or not Title IX requires a mere "preponderance of the evidence" ("POTE") standard to insure adequate protection from gender-based inequality is a tricky question. The Party in Power (call them "PIP") could "be tolerant" by acknowledging the uncertainty and let different public and private institutions make the call. This "tolerant" stance will bitterly disappoint the supporters of the PIP who ardently believe that POTE test is the statutorily required standard. Such supporters, however, might be mollified if they were assured that, by honoring a norm of decentralization, PIP would protect the supporters from having the POTE standard prohibited when the rival party comes to power. After all, the rival party might believe that POTE denies the accused of due process -- that only "clear and convincing evidence" ("CACE") would insure adequate protection against false positives. In order to prevent the very worst-case scenario, the PIP's supporters might grudgingly accept limits on their power to impose what they regard as the ideal rules.

The problem, of course, is that there is no obvious mechanism by which the PIP can make an enforceable deal with the Party out of Power ("POOP") to insure that present forbearance will be reciprocated. Because the POOP cannot give assurance that they will reciprocate, the PIP's supporters rationally insist that the PIP go ahead and impose the PIP's ideal policy. PIP would be rational to do so even if POOP's and PIP's supporters both were "tolerant and pluralist" -- that is, even if each side would prefer to forgo their own best-case scenarios in order to insure against the triumph of their opponent's best-case scenarios. Without legal institutions to enforce a deal, the two sides are trapped in a prisoner's dilemma from which their political good faith, their tolerance, their pluralistic character -- all the stuff that, I am guessing, Heather would classify as "politics" -- cannot save them.

Heather argues that we suffer from too much polarization rather than bad institutions. "[T]he real problem," she notes, "is the underlying assumption that one’s opponent is closer to Frankenstein rather than to Brandeis." I suggest, however, that polarization should increase rather than decrease the willingness to cut deals with one's opponents in the name of tolerance. After all, if one's opponents' views are closer to one's own, then the prospect of being governed by their norms is not so terrible. It is precisely when we fear our opponents' values most intensely that we need to take out an insurance policy against being subject to those values. The Thirty Years' War was not settled by good character or pluralist politics: It was settled by good rules in the Treaty of Osnabruck that gave each side credible assurances that they would be protected from their rivals. Likewise, during intensely polarized periods of U.S. history, legalistic norms like the Missouri Compromise flourished precisely because high levels of distrust created incentives for each side to seek institutional protection from their rivals. (Barry Weingast argues that such institutional protections fell apart not because of polarization but because the parties tinkered with the rules, admitting California as a free state and thereby eliminating the enforcement mechanism that forced each side to stick with the deal).

2. How might legal institutions help us achieve the pluralism that we want?

I heartily agree with Heather that, without a minimum amount of good will as lubricant, the gears of even the most sophisticated constitutional mechanism will lock up. I think, however, that we have not exhausted the benefits of good institutions that can help distrustful parties achieve the repose that both sides might really want.

Consider, for instance, the possibility of taking issues off the national agenda more aggressively. Heather's "national federalism" depends on the idea that, by giving Congress plenary power to decide everything, the two political parties will have better incentives to "dissent by deciding," enlivening our political debate with subnational policies that they hope eventually to nationalize. (By scoring a hit Off-Broadway, as it were, the POOP can move their show to a Broadway Theater as a PIP). In Heather's world, every subnational government is a farm team for the Big League, so voters in every local election rationally think about the effects of their ballot on national issues.

The problem with such a world is that, by raising the stakes of subnational politics, it destroys those politics for subnational government. David Schleicher has nicely explained how our subnational elections have been transformed into "second-order elections" in which voters vote on city council members, state legislators, and (to a lesser extent) mayors and governors solely based on their assessment of the national parties. As David notes, the cost is the destruction of subnational politics for subnational government.

One solution to go back to your father's federalism -- i.e., that old-fashioned idea that certain issues should be presumptively walled off from national decision-making, if not with barbed wire fences and trenches, then at least with speed bumps that slow down national legislation and regulation. Require more rules to go through notice-and-comment rule-making. (Such a requirement would likely have stalled OCR's "Dear Colleague" letter on sexual assault). Invoke Pennhurst and anti-coercion norms to limit the degree to which new interpretations can be given to cross-cutting grant conditions like Title IX. Beef up anti-commandeering norms to protect sanctuary cities.

Such doctrines provide political cover to PIPs against their own followers, allowing them to be tolerant and pluralistic to the other side by explaining to their impatient followers that certain centralizing policies will take too long to enact and are a waste of political capital. Such rules also provide reassurance to POOPs governing subnational jurisdictions who can thereupon relax the perpetual campaign at the subnational level to nationalize every local experiment and instead focus on subnational government. (As an example, consider Governor Hickenlooper's focusing on purely subnational politics of regional transit without any agenda of nationalizing the result, building up trust through initiatives like Colorado's FasTracks regional light rail program).

My point is not to attack Heather's "national federalism" but only to suggest that her brand of federalism, lacking formal legal institutions to constrain national power, might have consequences for the politics of pluralism. To the extent that our rules reward defection from decentralizing norms and dangle the brass ring of total national power before our subnational politicians, it should not be astonishing that they follow the incentives we give them. Even well-meaning pluralists will abandon self-restraint, after all, if their own restraint is never reciprocated. Rather than give up on the rules and hope for less polarization, it might be a good idea to think about ways in which our rules makes polarization a little more rewarding and self-restraint, a bit less attractive.