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University of California, Hastings School of Law
Leib, Ethan J.

Leib Spring ‘10


I. Pluralist Theories (the role of interest groups in policy making)

A. Descriptive
1. citizens organize into groups for political action (“factions”)
2. interest group politics results in “pluralism”—the spreading of political power across many political actors.
3. politics can be conceptualized as the process by which conflicting interest group desires are resolved.

B. Interest Group Liberalism: Pluralism as a positive political force.
1. Rather than fear factions, we now rely on large, organized groups to play a large role in the political process.
a. Political parties provide a structure for governance and information for voters
b. churchs, unions, may become involved in politics as a secondary matter to improve their members’ lives.
2. Theodore Lowi see the prevalence, strength, and diversity of interest groups as a sign of political health. The groups act as checks against each other. Constituents may use interest groups to signal the intensity of their preferences is a way not possible by voting.
3. Main benefits of Pluralism:
a. Interest groups may protect us from a strong and tyrannical gov’t
b. the result of a robustly pluralist system will be moderate and well-considered policies.
c. Interest groups represent the most meaningful possibility of participation by individual citizens.

C. Public Choice Theory: Interest Groups as Pernicious Political Influences
1. Their may be disparate access to the political process; business voices are overrepresented and the broad public interest and the less advantaged are underrepresented.
2. See CHART BELOW; If concentrated benefits/distributed costs, argue that the state should be interpreted narrowly to protect the public interest, if text is ambiguous.

D. Interest Group Theories: Explanation and Critique
1. Public choice theory explains the success of “distributive policies” that pass out goodies to many interests at the same time: such as tax bills that offer loopholes to many groups, defense appropriation bills that send $ to many districts, etc. Here, the “losers” may not even be alive, if deficit-spending is used to put the burden on future generations.
2. Regulatory Policies—these cause groups to fight over a single prize (EX: winning a television channel permit)
3. Redistributive Policies—similar to Redistributive policies, but the classes are much bigger (e.g., rich v. poor)
a. Not all legislators are “rent-seekers” looking for financial rewards from special interest groups; they have independent beliefs and legislative goals.
b. Interest group $ may be more effective at electing members who share their beliefs than changing lawmakers’ minds
c. Interest groups are better at blocking legislation than passing it, and are more effective w/ legislation that has low visibility than when legislation is well known.

Public Choice Theory

Distributed Benefits/Distributed Costs
Majoritarian Politics

Little group activity, some large groups of unorganized citizens will support benefits (clean air legislation) or fight costs (tax increases)

-Often no bill or symbolic action b/c nobody fights for or against
-May pass burden off to agency

Danger: Laws are usually in the public interest, but legislature doesn’t always update as society/underlying problems change
Response: Courts can expand law to new situations and develop in CL fashion (subject to limits imposed by statutory text)

Distributed Benefits/Concentrated Costs
Entrepreneurial Politics

-General benefit from specific taxation
-Majority imposing its will on the minority
-Opposition usually well organized
-Must rouse inattentive public to support

-Draft ambiguous bill and pass off to agency interpretation b/c of organized opposition
-“victory” all around

Danger: Regulated groups tend to evade their duties and may try to influence agency created to administer law
-Courts can monitor agency enforcement and private compliance
-Courts can create procedures to assure other groups are heard
-Courts can put pressure on agency to be faithful to law.

Concentrated Benefits/Distributed Costs
Client Politics

-Strong interest group support/Weak opposition
-Too difficult to fight against/Logrolling

-Costs allocated to uninformed public→legislature will distribute subsidies and power to organized beneficiaries
-Policy is often self regulation

Rent-seeking by special interest groups at the expense of the public

Courts should construe statutes narrowly to avoid unwarranted benefits. Ensure statute lives up to public-regarding justifications

Concentrated Benefits/Concentrated Costs
Conflictual Interest Group Politics

-Produces immediate/identifiable winners/losers -Well organized on both sides

-Favor no bill or delegation to an agency b/c this is a no win situation

Statutory balance/deal may grow unexpectedly lopsided over time

Judiciary should not attempt to make major updates unless interest groups are unable to get legislature’s attention

II. Proceduralist Theories (emphasizing the many obstacles a bill must pass to become law)

A. “Vetogates”—determined minorities can kill or maim legislation. Whoever controls these choke points has the power to kill legislation.
1. EX: committees, conference committees, rules
2. Theories of a committee’s purpose
a. Informational role: committees are part of an efficient congressional organization. Monitoring by the general body to ensure that the committee is acting as a faithful agent of the whole is less costly than developing expertise on every issue.
b. Rent-Seeking: the committees distribute unjustified benefits to interest groups. Members are extremist outliers that have strong ties to the area (EX: rural members on the Agriculture Committee) so committees are more extreme than the whole body, and they seek to pass legislation that benefits small and active groups at the expense of the public good.
c. Tools of the Majority Party: the committee organization provides an organization that enables most majority-party members to be reelected and permits the majority party to remain in Congress. (EX: the majority party allows rural Senators to be on the Ag committee, so their constituents are pleased and re-elect them; those member then return the favor.)
3. Generally, it is easier to block legislation in the Senate than in the House, b/c the Senate has less rules (EX: filibuster).
4. Vetogates are critical b/c the cts often rule that the statements that are made by gatekeepers (e.g., committee members) as reflective of the intent of the body b/c their support is critical to passage.
a. But are these statements true, or are speakers shading the truth?

B. Liberal theory disfavoring gov’t intervention—statutes should be hard to enact.
a. Hamilton, in Federalist Papers #73, said that proceduralism is “an additional security against the [enactment] of improper laws.
b. BUT, some say that this is simply a preference for the status quo regulatory regime (common law) vs. a legislative change (statue); this is not a neutral preference.
C. BUT, this proceduralism will slow good laws as well as bad ones (e.g., the Civil Rights Act)

C. The Deliberative Value of Process—proceduralism is a tool to encourage public deliberation about legislative proposals.
a. Proceduralism slows bills down and offers the opportunity for deliberation, but does not necessarily guarantee it.
D. Alternatives:
Direct democracy (petitionà ballot item voted on by people (we have this in CA))
Less deliberation here though.
Better campaign finance rules to keep special interests from accessing/influencing committee members
Most nodes of the vetogates model are not constitutional, but self generates
Committees and filibusters are not required by const.

Three modes of representation
– Trustee model—you’ve been given the discretion to do what you think is best for the polity at large (more aristocratic) (senate more trustee—longer terms, house more agency/descriptive?)
– Agency/Delegate model—to do only what authorized to do by constituency, or what they would do if they were in your shoes (term limits, recall, devices to insure representation in this style)
– Descriptive model—mirror the whole, microcosm of the whole.
What descriptors (race, class, sex, what else)?

Deliberative engagement as a way of framing the dialogue: representative has a “code of ethics” and constituents have a basis for bringing discussion that doesn’t terminate in threats to vote out

III. Institutional Theories (These theories focus on the institutions (instead of the players) that shape the structure of the interactions).

A. The Effect of Institutions on Decision-making
1. “majority vote cycling”—majority rule sometimes cannot resolve the choice among three or more mutually exclusive alternatives that are voted on in pairs.
a. This is solved by “structure-induced equilibria,”

ss legislation = good or bad?
– How to guard against bad legislation?
– One house can anticipate the other’s response, allows people to take extremist positions in the House knowing that they will be canceled out in the Senate (like Clinton’s impeachment) – irresponsible behavior
2. Bicameralism or Tricameralism: Why Should the President have Veto Power?
– Huge impediment in the legislative process, very hard to override = supermajoritarianism?
– Can thwart legislative majorities – thwarts democratic majoritarianism? Third House of Legislature
– South Africa – Veto if President believes action to be unconstitutional, goes to Const. Court
– 95% of Vetoes are successful – allows for posturing, pass a bill that you know will be vetoed in order to make a statement for electioneering,
– Vetoes have skyrocketed in numbers since the founders, vetoes can be on any grounds, not just Constitution
– Pocket Veto Power – 1066 bills killed this way!
– SC has only found 160 national laws unconstitutional, Veto has killed 2550
– President as a national interest? Representative of everyone in the country?
– Signing statements are another way around legislation – Unitary executive, power of President – but signing statements prevent a direct conversation with Congress and the public discussion that accompanies a veto
– Can any branch of government claim to speak for a real majority of citizens?
3. Our Illegitimate Senate
– 2 senators from each state, regardless of population = unequal voting power, 1/4 of the Senate is elected by 12 states with less than 5% of the US population
– Small states have inordinate power to push their interests / stop anything contrary, filibuster in Senate
– Creates unequal political blocs, completely anti-democratic in power and influence
– Leads to income redistribution to small states, hurts racial minorities (who tend to be subsumed in larger states), protects diversity among the states by harming efforts to homogenize the nation
– Small state senators can concentrate on specific issues for their population, skewing results and creating craziness like our Agricultural policy, subsidies, specific industry
– Small state residents have more voting power and easier access to their representatives
– Small state politicians are more likely to become party leaders (less time is spent raising money, politicking)
– Small state senators are better positioned to demand pork/windfalls – Homeland security, for example
– DC citizens have no vote in Congress, not represented at all
– Consequences – confirmation of SC Justices
– Small states are less urban, more white, not representative
– Redistribution is unfair – larger states are as, if not more, poor
– America is radically different from the situation that led to the Senate’s formulation
4. The Special Problem of Divided Government – How Separate do we Want Our Institutions to Be?
– political parties blur separation of powers – blurs bicameralism and legislative/executive splits
– frequent elections of House prevents consensus and experience
– separate institutions / factions take different policy positions, public pronouncements
– Capture of Legislative and Executive by one party kills Legislative oversight of Executive
– Legislators can’t serve in the Cabinet – reduces the talent pool available to President, could make smoother interaction with Congress, Reps with better experience in the area of government
5. The Constitution as Inadvertent Promoter of Discontinuity in Government (and Presidential Dictatorship)
– Senators can be appointed by Governors if necessary (death or something)
– What is “Quorum” necessary to do business? Majority of living members? – no way of filling vacancies in the House except by election! What if you can’t have an election immediately?
– Presidential incapacity can be remedied by VP and executive declaration
6. The Questionable Legitimacy of Lame-Duck Congresses
– Between election and taking office, an Old Congress is still in session – if they are no longer “elected,” why let them pass bills or take any political action?