Beyond Electocracy: Rethinking the Political Representative as Powerful Stranger

AuthorLani Guinier
DOIhttp://doi.org/10.1111/j.1468-2230.2008.00679.x
Publication Date01 January 2008
Date01 January 2008
THE
MODERN LAW REVIEW
Volume 71 January 2008 No 1
Beyond Electocracy: Rethinking the Political
Representative as Powerful Stranger
Lani Guinier
n
This year’sChorley lecture examinescertain theoretical and practical questions concerningpolitical
representationin constitutionaldemocraciesand advancesthree claims.(1) That electocracy (rule by
elections) reduces the role of citizens to a series of discrete choice points, often shifting the actual
moment of choice to the politician. (2) That a preoccupation with winner-take-all elections
encourages representatives in theUS to see themselvesas powerful strangers with aproprietaryinter-
est in their position. (3) That representatives can deepen democracy by functioningas catalysts for
citizen involvement not just surrogatesfor citizenviews or identities. Drawing on historicand con-
temporary examples of ordinary people who mobilize collectively to build new forms of citizen
power before and after elections, Professor Guinier adapts the framework of collective e⁄cacy to
describe this conceptual move.She argues that vibrant constituencies of accountability can transform
the representational relationship to reimagine democracy as self-governance not just self-govern-
ment.
In certain countries of Europe . . . the citizen is u nconcerned as to the condition of
his village, the police of his street, the repairs of the churchor of the parsonage; for
he looks upon all these thi ngs as uncon nected with himself, and as the propertyof a
powerful stranger whomhe calls the Government.
Alexis De Tocqueville, Democracyin America, vol1, ch 5
There is a move afoot in Great Britain to make the House of Lords a fullyelected
body. On 14 March 2007, Baroness Whitaker, a member of the House of Lords,
voted against the majority of her party (the Labour Party) and against a majority
of all members when she cast her vote to supporta fully elected upper chamber of
Parliament. Speaking two days before the vote, she declared that members of the
House of Lords, an assembly of hereditary and appointed members, should be
fully elected. Giving the people the chance to choose their legislators,Whitaker
proclaimed, is an ‘ancient and honourable tradition’.
1
Her colleagues were not
persuaded. Comparing themselves to an appointed judiciary, some peers claimed
that voting would only buy the appearance of legitimacy at the expense of
n
Bennett Boskey Professor, Harvard LawSchool. I thank David Barron, Chris Desan, Archon Fu ng,Ger-
ald Frug, HeatherGerken, Pam Karlan, FrankMichelman, Martha Minow, Susan Sturm, GeraldTorres,
the Harvard LawFaculty SummerWorkshop,the Columbia Law FacultyWorkshop, theYaleLaw School
Harper Fowler Lecture audience, participants in Amartya Sens Justice,Welfare and Economics Sympo-
siumon Democracyand the Futureat HarvardUniversity and MartinLoughlin, his colleagues and those
who attended the Chorley Lecture at the London School of Economics in June 2007. PortiaPedro, Sarah
Belton, Sarah Schalman-Bergen and Elizabeth Grossman provided exceptionallyable research assistance.
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71(1) 1^35
independent judgment.
2
And we all know, other Lords said, the people are sickof
politicians. A hereditary elite, they argued, is a more reliable source of wisdom
and a more vigilant protectorof the greater good.
3
In this essay I take the question debated in the House of Lords seriously. Do
more elections produce more democracy? I answer that question with a quali¢ed
negative: rule by elections, or what I have come to call‘electocracy’, does not ade-
quately serve the values of democracy. Byelectocracy I mean a political environ-
ment that de¢nes itself by sacred moments of choice. The act of choosing in a
competitive contest produces a clear winner. By casting their ballots, citizens
bestow democratic accountability on the victor. At the same time, who wins the
contest is even more important than who votes. And who votesis more important
than the quality and quantity of citizen participation in, or the policy conse-
quences of,other important political acts of self-government such as deliberation,
persuasion or collective mobilization.
My argument is that a preoccupation with elections ^ especially in a winner-
take-all environment ^ does not achieve the robust democratic accountability it
promises.While modern ideas about representation suggest that the representative
is bound in some way by the will of the represented, representatives werehistori-
cally selected to bind their constituents, not the other way around.
4
Consistent
with that history, our electocracy too often serves to convert political o⁄ce into
a form of hereditary privilege.
As the pivotal decisional event, elections ^ or even‘re-elections’ ^ failas the pri-
mary source of democratic accountability. First, elections too easily encourage a
form of aristocratic deference.Voters are tutored to limit their authority over the
o⁄cial to one sancti¢ed moment of choice. The process teaches them to yield to
the judgment, character or vision of the elected o⁄cial until the next election.
Second, the process in£uences representatives to see themselves as agents of their
donors rather than of their constituents.Those who fund elections enjoy contin-
uous contact with the o⁄cials. By contrast, voters are not well positioned ^
between elections ^ to in£uence the connections between Election Daydecisions
and their consequences.
5
Third, the process of districting in winner-take-all electocracies, such as
in the United States, shifts the actual moment of choice to the politician and
away from the voter. Incumbent politicians control the drawing of election
district lines; they choose their voters rather than the other way around. The
real election takes place long before the voters come to the polls. Con¢dent of
1 Baroness Whitaker’s remarks can be found at http://www.theyworkforyou.com/lords/?id=2007-
03-12a.475.0&s=speaker per cent3A12957#g500.0 (visited 20 Sept 2007). See also A. Cowell,
‘BritainWonders if More Elections Equal More Democracy’New YorkTi mes 18 Ma rch 20 07.
2 See, eg, the speech of Lord Lawson of Blaby in favor of the status quo at http://www.theywork
foryou.com/lords/?id=2007-03 -12a.475.0&s=speaker per cent3A12957#g500.0 (visited 20 Sept
2007).
3 S. Lyall,‘In Britain’s House of Lords, debate on electing its members’InternationalHeraldTribune13
March 2007.
4 A. F. Pollard,The Evolution of Parliament (NewYork:Russell & Russell,1968) 152^153.The con nec-
tion between contemporaryelectocracy and the history of representationi s developedin Part I.
5 M.Weirand M. Ganz,‘Reconnecting People and Politics’ inT. Skopcoland S. B. Greenberg(ed s),
The NewMajority:Towarda PopularProgressive Politics (New Haven:Yale UP,1997)149^171.
Beyond Electocracy
2r2008 The Author.Journal Compilation r20 08 TheModern Law Review Limited.
(2008) 71(1) 1^35
re-election in gerrymandered districts, many representatives become possessive
of their position, which they view as a career not just a conditional platform
for service.
Together, these features of our electocracy reinforce the idea that the represen-
tative has a proprietary or ownership interest in their position. Elected o⁄cials
learn to treat their o⁄ces as a kind of ‘representational property’. Like Baroness
Whitakers peers, they feel they should exercise exclusive control over their seats,
not as temporary caretakers but as long-term title-holders. Over time, they
become more and more like the ‘powerful strangers’ Tocqueville associated with
government o⁄cials in some nineteenth century European villages.
As Tocqueville warned, when government is viewed as the ‘property of a
powerful stranger,’ the citizen becomes less concerned with the ‘condition of his
village’ or ‘the police of his street.’ Citizens lose con¢dence in the abilityof gov-
ernment to deliver on its promises. Disa¡ected citizens withdraw even from vot-
ing when they begin to see government as someone else’s property.
To be clear, I do not take the position that we should abandon elections.
6
I
argue instead that elections ^ however they are conducted ^ are an insu⁄cient
instrument of democratic accountability, democratic outcomes and democratic
processes. Elections are often a necessary aggregative step in the process of deci-
sion making but democracy is diminished ^ and the values of voter participation
compromised ^ when both are reduced to a discrete set of ‘choice’ points.The
goals (in terms of its legitimacy, outcomes and process) of representative democ-
racy are not served when we de¢ne citizens participation primarily by the capa-
city of th e electorate to vote.
7
The ambition of this essay is to begin to conceptualize alternative forms of
citizen mobilization ^ outside of elections ^ that have the potential to remake
elections into more e¡ective mechanisms of democratic accountability. I use the
term collective e⁄cacy’ as a heuristic device to focus attention and draw lessons
from four historic and contemporary examples of such citizen participation ^
before and after elections. Collectively e⁄cacious citizens are not merely private
or civic associations of like-minded people, nor are they simplycivic watchdogs.
Instead, they build new forms of citizen power, collectively creating what Iris
MarionYoung calls ‘political associations’ that ‘raise questions about how society
should be organized and what actions should be taken to address problems or
do justice.
8
Where they succeed, it is often because representatives function as
6 Nor do I suggest thatit i s the numberof elections that are the problem.The argument ^ that it is
the proliferation of elections for toomany kinds of o⁄ces ^ is often made in the US to explain
exceptionally low levels of voter turnout and increasingly high levels of voter disengagement.
The US is either last or next to last in terms of the percentage of eligible citizens who routinely
participate in the electoralprocess. S. Issacharo¡, P. S.Karlan and R. H. Pildes,The Law of Democ-
racy: LegalStructureof the PoliticalProcess(Westbury, NY:Foundation Press,3rd ed, 2007) 88^89.The
United States ^ wheremost Americans don’tvote ^ ‘has moreelections for more levels of govern-
ment with more electiveo⁄ces at each level than any other country in the world.’ibid 89.
7 See J. Mansbridge,‘Rethinking Representation’ (2003) 97 AmericanPoliticalScience Review515.
8 I. M. Young,‘State, Civil Society, and Social Justice’ in I. Shapiro and C. Hacker-Cordon (eds),
DemocracysValue(Cambridge: CambridgeUP,1999)141, 147^148(distinguish ing between private,
civic and political association as discrete though potentially linked levels of associational activity).
Lani Guinier
3
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
(2008) 71(1) 1 ^35

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