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Abstract:
Budget procedures are often adopted or changed to improve "transparency" in budgeting. This phrase can refer to two different, although related, stages of the budget process. First, transparency may refer to the outputs of budgeting; here the ideal is that the tradeoffs inherent in a budget should be made clear, salient and understandable to policy makers and the public. Second, transparency may refer to the inputs of budgeting; here the ideal is to ensure that the decision-making process is itself conducted in public. This paper focuses on the second concept of budget transparency - the degree to which important budgeting decisions are made in public and in open deliberation and debate.

We identify an ideal transparency regime for the federal budget process, one that optimizes the benefits and costs of transparency and opacity. Two institutional-design tradeoffs are critical. First, transparency allows the public, and others who bring information to the attention of the public such as the media and challengers, to monitor elected officials and hold them accountable. However, it also allows interest groups, whose interests may not be congruent with the larger public interest, to monitor legislators. Because interest groups are better organized than the public, transparency may unduly empower those representing minority interests at the expense of overall welfare. We propose some techniques of transparency - such as delayed disclosure, which provides information some period of time after the budgeting decision has been made - that empower the voters while reducing the ability of interest groups to influence outcomes. Second, we discuss the effect of transparency on legislative arguing and legislative bargaining. Transparency deters self-interested bargains, but can also encourage posturing and inflexibility that produces bad deliberation. We propose that opacity is generally beneficial at earlier stages of the budget process, as where committees develop the macro-level allocations embodied in the concurrent budget resolution, while transparency is desirable at later stages of the process, when committees engage in concrete bargaining.

Finally, we discuss various institutional constraints and second-best problems at the implementation stage, including the question whether politics will block adoption of the optimal transparency framework, the risk that transparency will be circumvented by collusion, and the risk that opacity will be undermined by leaks. Although these problems are serious, we conclude that none is insuperable.

legislation, legislative process, budgets, transparency, democtratic theory

Abstract:
One of the most significant administrative law cases, Chevron v. Natural Resources Defense Council, is routinely referred to as "the counter-Marbury." According to the consensus view, Chevron deference is consistent with Marbury, as long as Congress has delegated to agencies the power to make policy by interpreting ambiguous statutory language or filling gaps in regulatory laws. Congressional delegation is not important just to reconcile modern administrative law with Marbury; it is also the reason provided by courts to justify strong deference to agency interpretations of law. In the first part of this article, I discuss the various ways courts have reached decisions about the delegation issue and provide a brief assessment of them. In the end, none of the judicial methods to determine whether Congress actually delegated law-interpreting authority to agencies can satisfactorily achieve that objective. Without explicit congressional direction regarding which institution, courts or agencies, should have the primary role in interpreting statutes, the institutional choice is necessarily made by courts when they decide cases that require such interpretation. Some scholars have argued that, if the decision has been effectively left to the courts, judges should devise and consistently apply a general rule of construction of regulatory statutes based on an explicit consideration of the institutional capacities of the courts and agencies. My project in this article is not to argue in favor of a particular rule of judicial review but rather to focus on a feature common to all of them. Whether courts search for some direction from Congress or whether they allocate interpretive authority based on other factors, all the methods of judicial review provide that a clear congressional instruction overrides any judicial rule. In the second part of this article, I describe a mechanism that could provide Congress an opportunity to provide explicit instructions about law-interpreting authority. Low expectations for congressional performance in this area stem in part from a failure to think creatively about the kinds of legislative vehicles available to Congress and about internal rules that can structure its deliberation. In statutes that periodically re-authorize administrative agencies and large federal programs or that annually appropriate funds to agencies, Congress could determine on an agency-by-agency basis whether to delegate the power to make policy through statutory interpretation with respect to all statutes that the agency administers, or with respect to some subset of decisions. This proposal is designed to take seriously the feature of judicial review of regulatory statutes that contemplates the possibility of an active role for Congress.

Abstract:
City, county and municipal ballot propositions are often used to raise funds for new infrastructure projects. We discuss three challenges facing the use the initiative and referendum process to fund local infrastructure projects; these problems suggest that we cannot be confident that voters have been able to make decisions that best serve their interests. We do not conclude that such difficulties are necessarily fatal to the use of direct democracy, but our analysis has consequences for the regulatory structure that shapes this process in cities, counties and special districts.

First, public agencies can make take-it-or-leave-it offers to voter. Voters do not have the ability to amend a bond proposal to move it closer to their preferences; they face a binary choice between either the status quo or the particular bond on the ballot. This type of decision making confers substantial power on the agenda setter and may result in an outcome that does not match the preferences of the median voter. This may be exacerbated by low voter turnout that characterizes many purely local elections where bond measures are decided.

Second, several common social choice problems can arise when sophisticated political actors manipulate the initiative agenda. One of the most pernicious of the problems they identify is that of sequential elimination agendas. The core problem with sequential elimination agendas is that they do not allow citizens to directly compare all of the alternatives and, therefore, do not allow them to make tradeoffs among their options. The typical problems created by sequential elimination agendas, suffered by state-level initiatives as well as local ballot propositions, are further compounded by two related aspects of local bond measures: limits on bond capacity created by state law, bond rating agencies or voters' (un)willingness to be taxed; and the presence of overlapping governmental authorities that can each propose bond measures to voters. The race for tax revenue can create a situation where bonds cannot be passed when they are needed; instead, funding is already allocated to unneeded or unwanted projects that were approved at an earlier election (i.e., earlier in the agenda).

Third, we find that voters can be faced with an information environment that precludes their making reasoned choices at the ballot box. For voters to make a reasoned choice that can improve their welfare, they must have correct beliefs about the consequences of their vote. Occasionally, voters may be able to identify the consequences of their vote on the basis of personal knowledge and experience, but they usually lack such information. In that case, voters must be able to learn from someone else - a knowledgeable, trustworthy endorser. They can then cast a reasoned vote, not depending on their own encyclopedic knowledge of a policy or their independent assessment of the merits of the argument, but using reliable cues provided by a knowledgeable, trusted endorser. In a series of case studies from Los Angeles and San Francisco, we find very mixed information environments for local bond measures, some which may allow voters to learn about the consequences of their decisions through trustworthy endorsements, and others where those important voting cues are few or nonexistent.

Abstract:
Even in the wake of the most sweeping campaign finance reform law to be enacted in three decades, further significant reform is inevitable. Special interest money continues to flow through loopholes in the Act, and the Presidential Election Campaign Fund is near collapse. The next reform should encourage broader participation in the political process by individual citizens, both to dilute the power of special interests and to serve independent democratic values that recent Supreme Court jurisprudence has identified as vital to meaningful reform. We propose adopting a refundable tax credit of $100/taxpayer for political contributions to federal candidates and national parties; the credit would be targeted to lower- and middle-income Americans. A refundable tax credit is equivalent to giving each eligible citizen up to $100 annually to use for political contributions. We also present data about the relative importance of political contributions by special interests (corporate, labor and other PACs) and individuals that undermine many of the assumptions on which past reform has been based and that have not been discussed in the legal literature. The data clearly show that small contributions by individuals are the dominant source of money in campaigns, and that the influence of special interest money is subtle, appearing to "purchase" benefits like access, a place on the agenda, and minor policy details. Working from an accurate picture of who really pays for politics, and drawing from the experience at the federal and state levels with similar tax refund programs, we present the tax credit as a reform that is simple, easy to administer, and likely to improve political participation by average Americans. Thus, our proposal, unlike the complicated voucher plan with anonymity put forward by Ackerman and Ayres, is likely to be adopted by Congress; moreover, it will appeal to a bipartisan consensus because it mixes public funding with a decentralized allocation mechanism using a tax subsidy.

Abstract:
Disclosure statutes have not been the focus of much scholarly attention, particularly in the legal academy. This lack of attention is unfortunate because the design of disclosure laws is crucial in several ways. First, the constitutional test applied to campaign finance laws, including disclosure, requires that statutes be narrowly tailored to serve an important state interest. In addition, targeting is important for the effectiveness of disclosure laws. Voters have limited time and attention, so they should be provided the information most crucial to improving their ability to vote consistently according to their preferences. Finally, current experience with campaign regulation demonstrates that entities adopt strategies to circumvent restrictions, so statutes must be drafted to reduce opportunities for evasion. This study sheds light on some of the evasive tactics by political entities that wish to avoid disclosure relating to the source and extent of their spending on ballot questions. These veiled political actors (VPAs) take advantage of regulatory loopholes to spend substantial amounts of money to influence the outcomes of initiative and referendum elections while avoiding publicity of their efforts. Part I describes the interest served by disclosure beyond enforcing other campaign finance regulations or exposing quid pro quo corruption of candidates. We argue that improving voter competence is the most persuasive rationale in direct democracy and leads to various conclusions about the structure of effective disclosure laws. In Part II, we assess the jurisprudence relating to disclosure statutes in direct democracy to provide a sense of the legal hurdles such statutes must overcome, hurdles that become more daunting the more burdensome disclosure is for political actors. The jurisprudence suggests that targeted disclosure statutes will survive judicial scrutiny. Part III presents our description and analysis of various VPAs organized under federal and state laws that are used currently to evade disclosure restrictions in initiative campaigns. Part IV provides preliminary conclusions.

Abstract:
Legal scholars are beginning to engage in sustained study of direct democracy: initiatives, referendums and recalls. More than merely assessing constitutional issues implicated by the initiative process, we are studying the legal structure that shapes direct democracy. Legal scholarship still tends to analyze direct democracy on its own, however, just as the study of representative institutions by legal scholars tends to focus on them in isolation. Yet, for most Americans, policy is determined at the local or state level by a combination of direct and representative institutions. A complete analysis of any democratic institution necessarily involves understanding that it operates in a Hybrid Democracy - neither wholly representative nor wholly direct, but a complex combination of both at the local and state levels, which in turn influences national politics. My objective in this Article is to underscore the dynamic nature of our Hybrid Democracy to establish the proposition that any complete assessment of democracy must take these interactions into account. I will describe interactions that occur in three ways in Hybrid Democracy. These interactions are dramatically seen in California politics, but they are present in other areas of the country with hybrid systems. First, candidate elections can be influenced by the presence of initiatives on the ballot. Hybrid Democracy can affect turnout in candidate elections, issues discussed in candidate campaigns, and the effectiveness of campaign finance laws. Second, democratic structures and the laws regulating elections are likely to be different in a Hybrid Democracy than in a wholly representative democracy. This occurs because initiatives offer a way around legislators when their self-interest clashes with reforms favored by a majority of voters. Third, the fact of Hybrid Democracy affects the policies that lawmakers adopt because they are aware that the political game includes the possibility of initiative and referendum. Strategic politicians, notably Arnold Schwarzenegger, take advantage of Hybrid Democracy as they negotiate using the threat of initiative as a bargaining tool.

Abstract:
The recall of Governor Gray Davis and simultaneous election of Arnold Schwarzenegger provide a unique window on aspects of elections and democratic institutions that are not limited to statewide recall elections. Although one must be wary of drawing general conclusions about the political process from an unusual event such as the statewide recall, this election can serve as a way to think about broader issues relevant not only to future recalls but also to all candidate and issue elections in California and throughout the nation. In this article, I discuss insights that the recent recall provides with respect to four familiar areas of law and politics. First, the recall demonstrated the significant and sometimes troubling role that money plays in modern campaigns, as well as the difficulty of constructing effective and comprehensive campaign finance laws. Second, the unusual structure of the recall election, where an election for Davis's successor was on the same ballot as the recall question, helps to assess the role of political parties in elections. It suggests that independent and minor party candidates can be part of an election without causing widespread voter confusion. Third, the over twenty lawsuits filed before the election was held - with one threatening to delay the election for months until an en banc panel of the Ninth Circuit stepped in - suggest that litigation is being used more aggressively as political strategy in the wake of the Supreme Court's intervention into the 2000 presidential election. Unless courts take a less activist role in cases affecting elections, this disturbing trend is likely to continue. Finally, I conclude with a discussion of the interaction between direct democracy and representative democracy. In states with a hybrid system like California, these two forms of democracy influence each other - a reality that we witnessed in the days before the recall election and that we are likely to continue to see as Governor Schwarzenegger threatens to use initiatives to pressure a recalcitrant legislature to do his bidding.

Abstract:
Much recent scholarship studying Congress has focused on issues of institutional design and assessed procedural innovations to determine why rules have been changed or retained and to describe the effects of certain design features on outcomes. Notwithstanding the focus on procedure, one component of contemporary legislative process has not received sustained attention. There is no systematic study of "framework legislation." Framework legislation creates rules that structure congressional lawmaking; these laws establish internal procedures that will shape legislative deliberation and voting with respect only to certain laws or decisions in the future. Often these procedural frameworks are part of more comprehensive laws that include delegations of authority to the executive branch or that have legal effects beyond shaping congressional procedure. Although these aspects of the laws that include framework legislation are relevant to the details of the framework and may explain why Congress decides to set up a framework, my objective is to focus primarily on the internal procedures, discussing the larger context only as it illuminates the decision to use frameworks and their design. This paper begins the study of framework legislation as a distinct legislative phenomenon in the United States. In this article, I first provide specific examples of framework laws. I then present five purposes served by framework legislation: enacting a symbolic response to a problem salient to voters; providing neutral rules for future decision making; solving collective action problems in areas where they are particularly acute; entrenching certain macro-objectives so that future decisions are more likely to align with them; and changing the internal balance of power in Congress. With a clearer understanding of the purpose of framework legislation, future work can more systematically describe its effects on the legislative process and provide recommendations for its use and reform.

Abstract:
Public choice, with its focus on interest groups, relationships among institutions, and the importance of procedures and institutions in shaping policies, has been a significant influence on the literature studying direct democracy. Direct democracy encompasses two methods of providing voters with direct lawmaking authority - the initiative and the referendum - as well as a third method of directly influencing lawmakers outside of the regular electoral process - the recall. Twenty-seven states provide for the initiative, the popular referendum or both; and the legislative referendum is required in every state for adoption of constitutional amendments. When one considers that about half of the nation's cities also provide for some form of direct democracy, it is not surprising to find that 70 percent of Americans live in a state or city or both that allows them access to direct democracy. This chapter will discuss the contributions of public choice to our understanding of direct democracy in three areas: 1) the role of organized interest groups and the influence of money; 2) the ability of citizens to vote competently on initiatives and therefore enact policies that align with their preferences; and 3) the strategic behavior of political actors in a hybrid democracy where initiatives can shape candidate elections and where the successful implementation of direct democracy depends on the actions of often hostile elected and public officials.

Abstract:
For most Americans, democracy in the United States is not entirely representative in structure, and none of us lives in a pure direct democracy where laws are made only through popular votes. Instead, for over seventy percent of Americans, including those in Oklahoma, government is a hybrid democracy - a combination of direct democracy and representative institutions at the state and local levels, which in turn influences national politics. Hybrid democracy is here to stay, so we need to better understand how its components interact. But even if we were writing on a clean slate and had the ability to choose between a purely representative system and one with some elements of direct democracy, I think we would do well to adopt some sort of hybrid. A system that allows the possibility of the initiative and referendum provides a check on elected representatives beyond the accountability of periodic elections. In this Lecture, I will suggest some of the benefits that a hybrid system can provide in three realms. First, hybrid elections allow candidates to make more credible promises by running on a platform that includes simultaneous enactment of initiatives. The association of an initiative with a candidate may also provide a richer information environment for voters, although recent scholarship draws into question whether voting cues are invariably enhanced by the strategic use of direct democracy by politicians. Second, the initiative process provides a way to circumvent the self-interest of legislators in designing institutions of government. Third, the possibility of using initiatives to enact policy supplies political actors with a tool that can serve majoritarian interests and counter special interest influence in legislative bargaining. As Governor Arnold Schwarzenegger is demonstrating in California, governance by initiative profoundly changes the dynamics of interbranch bargaining, although it does not seem to be a sustainable strategy if used frequently. As I discuss these benefits, I will also underscore the dangers of hybrid democracy and discuss reforms that seek to reduce the perils while maximizing the promise of our hybrid system.

Abstract:
This article identifies and analyzes five features of political parties that make them among the most complex and dynamic of any political institution and therefore among the most difficult for the judiciary to assess. Political parties are dynamic, complex, and endogenous; thus, their structure is determined in large part by the rules governing them. Judicial decisions that establish the structure of parties are problematic because courts constitutionalize the policy choices they make, even though those choices are not necessarily compelled by the Constitution. Such constitutionalization is unjustified because the dynamic characteristics of political parties that make them such a challenge to regulate also afford substantial political protection to both major and minor parties against encroachments on their autonomy. The article therefore argues that the general presumption in favor of judicial review should be jettisoned in the context of laws regulating political parties, and the opposite presumption adopted with nearly conclusive force. The article provides three objective "red flags" for courts to use to distinguish the very few cases in which judicial intervention is warranted from the vast majority of cases in which courts should decline to become involved.

political parties

Abstract:
This essay discusses two issues raised by the 2000 presidential election that are relevant to institutional design and institutional choice and that have applicability beyond the presidential contest. First, the election aftermath illustrates the importance of adopting frameworks to shape decisionmaking before an actual controversy arises. If rules and procedures are determined before it is clear which interests are benefited from particular procedures and which are harmed, it is more likely that rules will be chosen that serve public-regarding objectives rather than self-interested goals of participants. This analysis suggests that Congress was the institution best suited to resolve any lingering disputes from Florida because the Electoral Count Act, which had been adopted over one hundred years before, would have structured deliberation to reduce opportunistic behavior and to ensure that decisions were made transparently. Second, the interplay between the United States Supreme Court and the Florida Supreme Court is a fascinating case study of institutional dynamics, with the federal court decisively outmaneuvering the state supreme court to advance the outcome preferred by a majority of the U.S. Supreme Court justices. In particular, the first unanimous per curiam decision in Bush v. Palm Beach County Canvassing Board contained hints about the effect of Article II on judicial interpretation that discouraged the state supreme court from specifying substandards for any manual recounts. In the end, the real tragedy of the institutional interplay was not that the Florida supreme court was reversed but that Congress, the institution most suited to make any final determination, was prevented from playing that role. The Court's analysis and actions reinforced the unfortunate tendency of the political branches to rely on the unelected federal judiciary to set in and save the country from the "chaos" of democracy.

Abstract:
Congress structures some of its deliberation and decision-making through framework legislation. Framework laws establish internal procedures and rules that will shape legislative deliberation and voting with respect to a specific subset of laws or decisions in the future. Although framework laws are passed in statutory form, the portions of the laws that set out internal frameworks are usually identified as exercises of the two houses' constitutional rulemaking powers, and the right of either house to change the framework unilaterally is, in most cases, explicitly reserved. Framework laws are familiar, although little scholarly attention has been paid to them as a related legislative phenomenon in the United States. I specify some of the conditions that are necessary for the adoption of framework laws. In Part I, I present two necessary conditions that make it possible for Congress to use a framework law to deal with a set of particular decisions defined in the framework. Even when these conditions are present, Congress may decline to use the option of a framework, but without the two conditions, a framework is not an option for lawmakers. First, Congress must be able to identify a concrete problem and describe it with specificity so that the framework can be triggered in appropriate circumstances. Second, the partisan configuration of Congress is significant in several ways to the adoption of framework laws, although further empirical work focused on each of the two houses is required to specify this condition more fully. In Part II, I assess three conditions that could lead Congress to choose the statutory path with respect to framework laws, rather than using an internal vehicle like a concurrent or simple resolution. First, Congress may use a statute to signal that it is making a significant change in the way it does business and that it perceives the change as more durable than other rule changes. I conclude that this has little explanatory power. Second, and most importantly, Congress will use a statute when the internal procedural change is an integral part of a larger package that must be adopted simultaneously and contains some parts that must be enacted with legal effect. In many cases, the framework is part of a larger "inter-branch treaty" that affects both houses of Congress and the executive branch, often with provisions delegating authority to the President. This is a necessary condition for enactment of frameworks. Finally, path dependency and institutional learning play a role, so that when an area like budgeting or trade begins to be characterized by rulemaking statutes, then future changes also tend to be adopted by statute. This is a plausibility condition, making it more likely that internal rules will be adopted by statute, but it is not a necessary condition.

Abstract:
The objective of campaign finance regulation has been incorrectly formulated. The main goal of campaign finance laws articulated by judges and legislators has been to eliminate a certain kind of corruption from the political system. This corruption is described as a subtle kind of bribery where large campaign contributions are used to motivate particular kinds of legislative behavior. The Court is struggling with an issue that has long beset judges and others attempting to distinguish corrupt activity on the part of government officials from politics as usual. At the extreme, corruption is easy to identify in return for some private gain, a public official performs an act she would otherwise not perform. The problem arises when the act is one that the official probably would have performed whether or not she received the benefit, and/or when the benefit is something allowed by the political system, such as campaign contributions to officials whose policies and ideology the contributor supports. Relying on the desire to eradicate institutional corruption as the guiding rationale for campaign finance reform efforts is problematic for reasons I discuss in the first part of this article. The primary problem lies in the difficulty of determining when a member of Congress is "too" compliant with the wishes of some of her constituents and when she is properly responsive to the people who elected her.

Because the notion of institutional corruption that seems to propel most campaign finance reform and that structures the court's analysis is difficult to define precisely and may not be a concern usefully addressed through campaign finance reform without larger, and politically unlikely, changes in the distribution of wealth and other resources, we would do better to reformulate the objectives of campaign finance entirely. I propose that Congress shift its orientation and work to devise a system of campaign finance laws that empowers people to make decisions in their own interests. Congress would thus adopt as its guiding principle the objective of improving voter competence. A system dedicated to enhancing voter competence would enable citizens to get the information necessary to vote in accordance with their preferences and to hold politicians accountable for their decisions. I conclude by arguing that the objective of voter competence justifies a campaign finance system that regulates only through aggressive disclosure, but I also suggest that such a system faces constitutional and logistical challenges. It is such challenges that should command our attention, not the hopeless task of enacting increasingly Byzantine restrictions on soft money, issue ads, and other political activity.

Abstract:
Given their limited attention to political matters, most people vote on the basis of certain voting cues, such as incumbency or party affiliation. They hope that such shortcuts will allow them to vote in the same way that they would if they had full information about the candidates and their positions. In other words, they search for cues that will allow them to vote competently even with limited information. This article analyzes whether the ballot could be used to provide voters with information about candidates' positions on certain issues. Some interest groups, most notably those supporting term limits, have advocated "informed voter" ballot notations that would inform voters, via a notation on the ballot, about the candidates' positions on particular issues. Considering ballot notations in their best light, we discover that they could serve two salutary objectives. First, they could provide voters with relevant information, giving the electorate a better sense of the candidates' ideology. Second, ballot notations could empower a broader number of political participants, allowing entities other than candidates, political parties, and the media to shape the campaign agenda. Grassroots groups with intense preferences on an issue or set of issues could use the ballot to focus candidates' attention on their agenda. Accordingly, these groups would have a greater ability to influence the public agenda, in the same way that the prospect of an endorsement by a minor party can influence the policies supported by the candidates of the major parties. The Article then focuses on substantial problems that have become apparent through experience with the term limits notations. Finally, the Article concludes by analyzing potential solutions to the problems of informed voter ballot notations. Given the possibility of improved voter competence, these solutions--to allow the content of ballot notations to be determined by a periodic public opinion poll or to allow each candidate space on the ballot to communicate with voters--are worthy of consideration.

Abstract:
It is easy to dismiss the Line Item Veto Act of 1996 (LIVA) as a mere footnote in a larger tale of inter-branch dynamics. Effective for about a year before the Supreme Court declared it unconstitutional in Clinton v. City of New York, LIVA was part of the first plank in the Republicans' Contract with America, the policy agenda that propelled them into control of the House of Representatives in 1994. Legal scholars and law students may miss the significance of this story because it lies in the congressional action, not in the court proceedings. First, the story of LIVA and Clinton v. City of New York provides a clear understanding of how Congress can delegate authority to the executive branch while retaining a great deal of control over the exercise of delegated power. A close analysis of the structure of the cancellation authority delegated to the President shows that Congress did not use LIVA to abdicate its responsibility as the branch with the main authority over spending and tax policy. Instead, Congress crafted a structure that provided legislators with continuing and significant influence. Second, the story of LIVA provides a case study of congressional deliberation of thorny constitutional questions. The legislative history of LIVA clearly reveals that Congress did not completely resolve the constitutional objections to the law. Instead, Congress punted final resolution of these issues to the courts, providing in the statute an expedited process for any constitutional challenge to reach the Supreme Court. Congress' performance on this dimension of LIVA raises the question of whether legislators can fulfill their responsibility to consider constitutional ramifications of their actions. It may be the case that they shirk this duty not only because it takes time away from activity that constituents value more, but also because some hope the judiciary will strike certain laws down, allowing members of Congress to avoid blame for the failure to deliver on their promises in circumstances where they would prefer the status quo ante. On the other hand, the discussion in various committees and extended debate in the Senate demonstrate that members will spend some time on constitutional issues, but that constitutional arguments do not necessarily change minds.

Abstract:
Congress sometimes adopts internal rules of procedure as part of statutes, or framework laws, which establish internal procedures that will shape legislative deliberation and voting with respect to certain decisions in the future. In one area that affects the relationship between the federal government and the states - the enactment of unfunded mandates that burden states and localities - Congress has adopted a framework law: the Unfunded Mandates Reform Act of 1995. UMRA has been in effect for over a decade and is an integral part of the procedural environment shaping congressional consideration of certain proposals implicating federalism. In general, UMRA increases the hurdles, in both the House and Senate, to enactment of new unfunded mandates. In this article, I will use the theoretical work on framework laws I have developed elsewhere to assess UMRA. In Part I, I will briefly describe UMRA and relate it to the larger congressional budget process framework, of which UMRA is part. In Part II, I will determine which of the purposes of framework laws UMRA serves, concluding that it serves, to greater or lesser extent, four purposes. It provides a symbolic response to an issue made salient in the early 1990s; it provides a solution to collective action problems often encountered by multimember legislatures, particularly as it provides information to lawmakers about the scope of proposed unfunded mandates; it is a precommitment and entrenchment device to make it harder for Congress to pass unfunded mandates imposing costs above a certain threshold; and it shifts power away from committees to individual members and to party leaders. In Part III, I will discuss why UMRA was passed as a statute, rather than as simple resolutions changing the internal rules of each house. Finally, in Part IV, I will identify and discuss two of the challenges facing framework laws designed to further the values of federalism. First, any framework law, including those dealing with federalism, must define ex ante the universe of future proposals to which it will apply. That is part of the explanation for UMRA's narrow targeting of unfunded intergovernmental mandates. Other federalism frameworks could aim at different, relatively concrete problems, such as preemption or conditions of assistance. Second, the role that a framework law like UMRA should play in judicial review is unsettled. Potentially, courts could police Congress' adherence to its own internal rules, especially those passed as framework legislation. I conclude, however, with skepticism about judicial review of compliance with framework laws. Not only would it likely lead to a congressional response to avoid judicial review in many cases - perhaps reducing the use of framework laws generally - but courts would also find it challenging to discern whether lawmakers had complied with internal rules in any particular decision.

Abstract:
In this Article, we focus on two complaints about initiatives that can be addressed through a new legal framework. First, some have argued that the policy choices made through direct democracy are often not socially optimal, and the processes through which initiatives are passed may make welfare-reducing decisions inevitable. Second, initiatives, once enacted, often fail to be implemented by government officials. In response to these two problems, we propose a new comprehensive framework of postqualification reforms that keeps both the spirit and intent of the initiative process: the Dual Path Initiative Process with a Citizens' Initiative Implementation Oversight Commission.

First, the Dual Path Initiative Framework includes three distinct stages for each initiative. The first stage occurs when only a brief description of the proposal, providing the purpose of the initiative and the general outline of the solution to be adopted, is circulated for signatures. This process is designed to gauge public support for the general objective of the proposal's backers. When sufficient signatures have been obtained and the process moves to the second stage, the proponents and legislature have the opportunity to draft legislative or constitutional language to submit to the people for a vote. During this second stage, lawmakers and ballot measure proponents can negotiate so that a compromise can be passed as a statute through the traditional legislative process or a mutually acceptable constitutional amendment can be submitted for a vote. Even if there is no agreement reached, this period provides flexibility so that drafting errors can be identified, likely consequences of the new policy can be assessed, and language can be revised. At the end of this time, if the proponents of change are not satisfied with the legislature's response, they can submit to the people a detailed proposal designed to advance the purpose of the originally-qualified brief policy. The third stage occurs after a popular initiative is enacted through a vote of the people. Popular constitutional initiatives will expire after ten years and must be re-enacted; popular statutory initiatives will also be less durable because the legislature may, after a period of time, amend or repeal any such initiative.

Second, we propose a Citizens' Initiative Implementation Oversight Commission (CIIOC) to ensure that enacted initiatives are faithfully implemented by state and local officials, who might otherwise work to obstruct or delay ballot measures they opposed. The CIIOC will include a representative named by each successful popular initiative, and it will have the ability to conduct hearings, produce reports, participate in administrative proceedings, and even pursue litigation. A statewide citizens' oversight commission is a novel reform, not currently used by any state.

Abstract:
Justice Marshall's career reveals his commitment to the objective that all people, regardless of their race, ethnicity or economic class, should have an equal opportunity to participate in the political process. His view of participation emphasized not just its instrumental value, but also Marshall's belief that participation is intrinsically valuable to participants and the larger society. He saw the foremost constitutional principle as equality; and he viewed participation in politics as a related principle that "recognizes the moral worth of each individual, and in this way shows again that all persons are equal." The Justice also understood that entrenched interests within the parties and elsewhere would use every weapon to keep new voices from being heard and would resist expanded public involvement in the political process. Justice Marshall knew concretely and personally that without those new voices in politics and without that broad participation in elections and governance, lasting and profound change in a democracy is impossible. Because so much of Justice Marshall's legacy as a litigator and jurist lies in the realm of the fight for civil rights, scholars and biographers have usually dealt with these political process issues as they relate to the struggle in the courts and legislatures for equal rights, particularly for racial minorities. However, Marshall's jurisprudence includes several important opinions concerning political parties and campaign finance regulations that are not explicitly focused on race. This article focuses on those opinions. In Part I, I discuss the passages of Justice Marshall's opinions that reveal his view of the role of minor parties and other forces in ensuring that new perspectives and outsider views influence the political agenda. The key cases here are those describing the importance of minor parties in the American political process, but Marshall also sounds these themes in cases dealing with residency requirements in voting registration laws as well as in a dissent in a case involving felon disenfranchisement. Of course, new voices must have access to the political process to effect change, and Marshall's commitment to equality of opportunity to take part in politics can be seen in the cases to which I turn in Part II: the campaign finance cases. Austin v. Michigan Chamber of Commerce is his most significant campaign finance opinion, but his egalitarian approach shapes other opinions, including his concurrence in part and dissent in part in Buckley v. Valeo. Austin is best understood as vindicating the principle of equality of political opportunity even though, to maintain his majority, Marshall disguised egalitarian arguments in the garb of corruption. Finally, in Part III, I discuss aspects of Marshall's jurisprudential approach that demonstrate his awareness that entrenched players, particularly those in the legislature and at the helm of the major parties, will resist these new voices and seek to manipulate institutions to protect the status quo. He viewed the independent judiciary as a way to ensure that the political branches are not allowed to adopt laws and institutions that shut out those with dissenting perspectives. His distrust of some actions of the major parties was balanced, however, by an appreciation of the role they play in structuring political discourse and helping voters cast votes that reflect their priorities.

Abstract:
TVA v. Hill, often noted for its importance in shaping environmental law, is also a key case in statutory interpretation law. The case involves the conflict between finishing the Tellico Dam and Reservoir, a project of the Tennessee Valley Authority that many characterized as pork barrel spending, and protecting the habitat of the rare snail darter fish. Although the Supreme Court’s decision halted construction of the nearly finished dam, Congress subsequently passed legislation ordering completion of the reservoir project. Drawing on key legislative materials and judicial documents, Professor Garrett shows how this case illuminates the interactions among the three branches of government on a question of statutory interpretation. Participants in all branches of government were keenly aware of the involvement of the other governmental actors and made their decisions in light of expected reactions by others. This chapter traces the Tennessee Valley Authority’s decision to build the Tellico Dam and the years of congressional attention to the project through the annual appropriations process; details the litigation brought to stop the dam by a law professor and his students; and analyzes legislative reactions to the Supreme Court decision interpreting the Endangered Species Act to protect the snail darter’s habitat. The story of TVA v. Hill illustrates that, despite internal rules discouraging appropriations riders and the judicial canon disfavoring such provisions, Congress can achieve its purposes by passing a clearly worded provision within the text of annual appropriations bills.

Abstract:
In this paper, I dispute one of the central claims of supporters of direct democracy -- that such lawmaking is freer from special interest domination than lawmaking by legislatures. I also challenge supporters' claim that the availability of the initiative and referendum provides a desirable safeguard to empower ordinary citizens. In fact, special interests, not ordinary citizens, generally frame the terms of debate concerning ballot measures. Traditional lawmaking and direct lawmaking are different mechanisms used to aggregate and shape individual preferences, which may lead to different outcomes, but both are influenced disproportionately by those groups that can express their preferences more loudly or clearly than other groups or individuals. Second, judges also play a role in determining the direction of direct democracy. Very little scholarly attention has been directed to the appropriate method of interpreting laws passed by direct democracy. I offer some preliminary thoughts on this provocative question and on the role courts might play in ameliorating the deliberative shortcomings of direct democracy and in reducing the distorting influence of interest groups in the process.

Abstract:
For over a decade, federal budget rules have included procedures designed to increase conflict among those competing for federal benefits. As deficit concerns have caused steady retrenchment in spending and indexation of tax brackets has increased the pressure on federal revenues, budget rules have institutionalized interest group conflict by requiring advocates of new programs to find revenue offsets for new spending. This paper studies the "pay-as-you-go" provisions (PAYGO) codified in 1990 to structure the consideration of tax legislation. First, I provide a detailed explanation of why and how offset requirements in the tax arena can reduce the growth of new spending through the Internal Revenue Code. I explain the ways that interest groups seek to avoid the high costs of PAYGO, such as taking advantage of timing and accounting gimmicks and downstreaming decisions to regulators who can parcel out tax subsidies without triggering PAYGO requirements. I also use the theory of rent extraction to explain why self-interested legislators adopted offset requirements even though the rules impair their ability to send federal benefits to interest groups. Second, I argue that institutionalized conflict has at least one positive, but previously overlooked, effect on the budget process. Offset requirements both result in the production of an increased amount of information about tax expenditures and provide a structure for its disclosure that allows members of Congress to understand and use it more appropriately. PAYGO can thus be seen as a surrogate for the more straightforward tax expenditure review that tax policy analysts have long advocated. This benefit may not outweigh other costs associated with PAYGO and identified in other literature, but it must be considered as we analyze modifications to the federal budget framework and proposals to constitutionalize parts of it through a balanced budget amendment.