Representation Reinforcement: A Legislative Solution to a Legislative Process Problem

Abstract:     
One of the most valuable-and disturbing-insights offered by public choice theory has been the recognition that wealthy, well-organized interests with narrow, intense preferences often dominate the legislative process while diffuse, unorganized interests go under-represented. Responding to this insight, legal scholars in the fields of statutory interpretation and administrative law have suggested that the solution to the problem of representational inequality lies with the courts. Indeed, over the past two decades, scholars in these fields have offered up a host of John Hart Ely-inspired representation reinforcing "canons of construction," designed to encourage judges to use their role as statutory interpreters to tip the scales in favor of groups believed to be under-represented in the political process. This Article takes issue with such judicial solutions and instead proposes a legislative solution to what is, at bottom, a legislative process problem. A legislative solution has many advantages over a judicial one: (1) it avoids judicial usurpation of legislative power; (2) it reaches all legislation, not only those laws which become the subject of litigation; and (3) it has the potential to empower traditionally disadvantaged interests at the lawmaking stage, rather than merely reduce the harm worked upon them at the statute-interpreting stage. The Article argues for a new framework statute designed to institutionalize a congressional precommitment to evaluate the impact that proposed legislation will have on politically disadvantaged groups. It concludes by advocating a modified, but enduring, judicial role, limited to enforcing this congressional precommitment.

Keywords: legislative process, representation reinforcement

Accepted Paper Series