Representation Reinforcement Through Advisory Commissions: The Case of Election Law

84 Pages Posted: 11 May 2005

See all articles by Christopher S. Elmendorf

Christopher S. Elmendorf

University of California, Davis - School of Law

Abstract

An increasingly prominent strain of legal commentary warns that the democratic good of robust political competition is endangered by legislators' penchant for enacting, and preserving, statutes that entrench incumbent officials and dominant political parties against challengers. This political entrenchment dynamic is thought to warrant external regulation of the content of election law by a politically insulated constitutional court or regulatory commission. Drawing on recent institutional innovations in Australia, Canada, and England, this Article suggests a different institutional remedy for the entrenchment problem: a permanent advisory commission, authorized to draft bills for the legislature to consider under a closed-rule procedure, or for the citizenry to address by referendum. The approach suggested here provides an answer to the two main criticisms that have been lodged against external regulation in the interest of fair political competition: that such regulation is democratically illegitimate, and that the regulator itself is likely to be captured by political insiders. The standing advisory commission can be expected to do a better job of identifying and pursuing normatively appropriate reforms than would an otherwise similar external regulator. The very tenuousness of the advisory commission's de facto power to reform the law (depending as it does on public opinion) should make the body a more reliable agent of the citizenry's interests and concerns. And in the event that the body falls under the sway of political insiders, it stands to do much less damage than a captured external regulator, thanks to the voters' freedom to ignore it.

Keywords: elections, law of democracy, entrenchment, agency costs, constitution, constitutional law, oversight, reform, voting

Suggested Citation

Elmendorf, Christopher S., Representation Reinforcement Through Advisory Commissions: The Case of Election Law. New York University Law Review, Vol. 80, November 2005; UC Davis Legal Studies Research Paper No. 42. Available at SSRN: https://ssrn.com/abstract=721741

Christopher S. Elmendorf (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States
530-752-5756 (Phone)
530-753-5311 (Fax)

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