Fondly Harriet

I'm one of those Democrats who's mostly amused by the nomination of Harriet Miers. The whole process has been surreal. My favorite twist so far is that confirmthem.com, a website devoted wholly to advocating the confirmation of Bush's court nominees, has come out against Miers (something I learned from Seth).

Anyway, here's another interesting little tidbit. You can read some correspondence between Bush and Miers at the Smoking Gun. [UPDATE: be sure to read the second item, in which Bush warns Miers, "No more public scatology."] In one letter, Miers thanks Bush for inviting her to the Juneteenth celebration.

Juneteenth is celebrated on June 19th every year. It commemorates the liberation of the Texas slaves by the Union army. Obviously it's a celebration with relevance mostly in Texas, although the descendants of Texas slaves have carried the tradition elsewhere.

I don't know exactly why I find this so striking, except that the symbolism is pretty complex, and Bush and Miers were in the thick of it 9 years ago. Of course some of it is just politics, but it's nice that a Republican governor of Texas saw fit to celebrate the defeat of the Confederacy and the arrival of the Union forces. And Harriet Miers was celebrating with him.

Mad Dead Presidents

I don't have a strong opinion about campaign finance reform. On the one hand, I think it's likely that money has too much influence in DC. On the other hand, that might be an unfortunate byproduct of a strong First Amendment. I did have a thought, though, that seems to avoid these problems: ban all corporate spending on political advocacy.

At first, this seems to raise the familiar First Amendment concerns. Of course, corporations aren't natural people, and it would be simple enough to deny them First Amendment rights. The real question is whether this prevents the stockholders from being heard.

The answer is pretty clearly no. We could allow the board of directors of a corporation to set up some sort of advocacy fund, but it would draw all of its money from voluntary donations by shareholders (or employees or whomever). Shareholders will exercise their First Amendment rights if they please, and not otherwise. In the status quo, minority shareholders might unwillingly or unwittingly fund political spending with which they strongly disagree. In my system, not only will political spending probably decline, but it will do so without impinging on anyone's rights. If anything people will be more free to invest without having to worry about the political consequences of doing so.

On top of that, in the status quo Congress can essentially shake down big corporations for lots of money by threatening new legislation. If corporations could credibly promise to give no money, they would avoid costly arms races that end up benefitting only DC incumbents. The legislative process might also proceed in a more rational manner, though I wouldn't count on it.

Now, the only question remaining, I think, is whether there's a downside to reducing corporate political advocacy. Arguably this spending helps Congress make economically intelligent decisions. It gives them a rough gauge of which interests are at stake. Corporations overcome the "free-rider" problem by forcibly donating their shareholder's money on a pro rata basis. On the other hand, in the status quo plenty of corporate donations are made to preserve economically inefficient arrangements that benefit particular corporations. I can't think of a reason that aggregate corporate political spending would yield more efficient economic policy.

A distinction should be made here: when I refer to corporations, I mean business firms. The corporate structure might be used for groups devoted entirely to political advocacy, and that's fine. The point is that investors who buy shares in business corporations generally do so to make money, not to make a political statement. We can serve their needs and respect their rights without the expensive and unseemly political distortions that characterize our system.

Max Black is Back

So the law & econ workshop paper last week was "Adding Substance to Section 5 of the Voting Rights Act," by David Epstein. When a state redistricts, it has to get clearance from the courts. In the past, the courts have forced states to create districts with high percentages of minority voters, so that the minorities have at least some representation in the legislature (federal or state). These days many people feel that this is counterproductive, since concentrating like-minded voters in one district is a way to diminish their actual political clout.

Epstein argues that there are 2 kinds of representation: descriptive and substantive. Descriptive representation happens when minorities elect their preferred candidate. This means that their candidate wins both in the primary and the general election. If minorities lose in the primary but then vote for the winner in the general election, that's not descriptive representation. Substantive representation just means winning actual votes within the legislature. There is some tension between these two kinds of representation, since minorities might get more descriptive representation if they're concentrated in a few districts, but more substantive representation if they're spread out.

My main objection to the paper is that it measures substantive representation by tracking the votes of the representatives of heavily minority districts. So for instance, imagine that a district is 65% black and the representative won both the primary and the general election with black support. That legislator is taken to represent black interests, and substantive representation is measured by how many times the legislature votes along with that person. Similarly, to tell whether another legislator is "black-friendly," says Epstein, just tracks how often that person votes with the black caucus.

Aside from the fact that a vote count is a crude measure (because some votes matter more than others), this strikes me as a poor proxy for substantive representation. It so happens that black-supported legislators are usually Democrats. The results then show that white Democrats are fairly black-friendly, while Republicans (white or black) are not. The problem is that this measure over-states the friendliness of Democratic legislators. Put simply, we don't know whether the white Democrats are voting with the black interests or whether the black-supported representatives are voting with the Democrats. If black-supported legislators were somehow forced to vote Democratic in all votes (say, with financial or institutional pressure), the Democrats wouls appear to be very black-friendly without in fact changing their votes at all. In reality, of course, it's not so extreme. Black-supported legislators probably work with white Democrats so that each group scratches the other's back. The point is that we don't know the extent of this compromise; the numbers may reflect 100% Democratic support for black positions while the reality is that black-supported legislators often compromise and vote for white Democratic interests.

I asked Epstein about this at the talk, and his response was essentially that compromise is part of the political process. No doubt this is true, and no doubt it helps blacks to be in a position to take advantage of the give and take of politics. Still, Epstein's measure of substantive representation is likely to be overstated. He thinks courts can allow states to trade away descriptive representation in return for increased substantive representation, but his measure of substantive representation is flawed. This calls the whole tradeoff into question; courts should be aware that if they use Epstein's measure, they could trade away descriptive representation and get less than they expect in return.