How can legislators achieve substantive representation

These examples show that whoever legislators are trying to represent, they do so within a rich institutional context. Some rules, like House germaneness requirements, constrain what rank-and-file legislators may do.

Others, like Senate holds, empower legislators. Still others, like rules enabling party leaders to strip committee chairmanships, shape the various pressures legislators face.

Even rules which expand or diminish legislative capacity shape responsiveness, though in more subtle ways. In each case, legislative organization helps determine how legislators behave.

In so doing, it devotes equal time to familiar law of democracy topics and to less familiar issues of legislative organization. It considers a sampling of the many different sorts of legal rules that create the environment in which legislators act. Some of the rules that the Article discusses are formally part of constitutional law, grounded in constitutional text and precedent. Richard Primus, Unbundling Constitutionality, 80 U. Dicey, The Law of the Constitution 20 J. Allison ed.

Show More. In taking this approach, this Article makes three principal contributions. It shows how the law of legislative representation is pluralist, pulling legislators in competing directions. And it contends that theorists of representation cannot fully understand that concept without attending to the ways in which it is constructed by law.

Elements of each area of law pull legislators in competing directions. Rather than pointing legislators toward one type of representation or another, the law enables and encourages legislative responsiveness to each of three groups: constituents, interest groups, and party leaders.

The groups are conceptually distinct, so this Article largely considers them separately. But they can overlap in practice: many constituents are also loyal partisans, many constituents are also active members of interest groups either centered within or outside of the constituency , and interest groups play a key role in constituting and supporting political parties. Show More These groups each have the ability to reward or punish legislators.

Knowing this, legislators have incentives to attend to the preferences and interests of each. On any given issue, understanding why a legislator behaves as they do often requires looking to their constituents, to relevant interest groups, and to party leaders. Pluralist approaches to legislative representation have long existed in political theory; this Article argues that U.

See infra Section I. This pluralism is not only a theoretical way of understanding representation; it also provides insight on possible reforms. Consider the frequent criticism that Congress and state legislatures are overly responsive to corporate interests or the wealthy. See infra note 25 and accompanying text. Show More The most obvious way to reduce the power of these interests is to do so directly, hence well-known proposals for campaign finance reform.

See, e. The theory behind this approach is that, because different groups compete for the limited attention of legislators, empowering some groups such as constituents or party leaders can reduce the influence of others here, certain interest groups. The choice between direct and indirect approaches to reducing corporate power will turn on many factors—some legal, some political, some practical.

See infra Section IV. Second, the Article shows how fully understanding representation requires focusing on internal legislative organization and procedure. Moreover, the same analytic tools that have long been applied in the law of democracy context can be applied to analyze how legislative organization and procedure matter for representation.

As such, legislative organization and procedure should be studied alongside the law of democracy. A key implication of this insight is that changes to legislative organization and procedure can sometimes be a substitute for changes in traditional law of democracy areas.

Reformers have long sought to change how representation operates through changes to voting, redistricting, or campaign finance rules.

In some cases, similar shifts in responsiveness could be achieved by making changes to legislative organization and procedure instead. To be sure, changes in internal legislative operations are not a perfect substitute for reform to the law of democracy, which is often and rightly viewed as required by principles of political equality. But reform to legislative procedure holds significant promise as a vehicle for achieving some of the ends sought by law of democracy reformers.

Consider again the example of corporate power. The most widely known proposals to restrict corporate power involve changes to campaign finance laws. See infra note and accompanying text. Show More But, even absent campaign finance reform, each chamber of Congress has tools that it could deploy to seek to reduce corporate power.

Even modest changes to lobbying regulations, transparency rules, revolving door rules, or congressional capacity could advance some of the goals sought by campaign finance reformers. Such internal changes might reasonably be viewed as second-best solutions, relative to directly reforming campaign finance law. But the difficulty of changing the law in that area warrants allocating more reformist attention to organizational and procedural reforms.

Third, this Article argues that a detailed descriptive account of political institutions and legal rules should be part of our normative theorizing about representation.

Show More The arguments for the existence and importance of these duties are often persuasive. This Article seeks to supplement existing work by emphasizing the importance of rules in structuring how legislators behave, and thus whether and how they fulfill whatever duties they have. In particular, its focus on constituents, interest groups, and parties trains our attention on the actors who can plausibly induce legislators to fulfill—or violate—their duties. See infra notes —22 and accompanying text.

My discussion of pluralism should not be taken as an endorsement of how Congress or any other legislature operates in practice. Even if a pluralist account of legislative representation is sound as a matter of theory, and even if the law instantiates that pluralist approach at a high level of generality, the devil is in the details.

And there is significant evidence that the practice of representation today is vastly unequal. Political scientists have documented significant capture of the federal and state legislative processes by corporate interests and the wealthy.

Lacombe, Billionaires and Stealth Politics For dissenting views of some of this literature, see. Lax, Justin H. Unequal Representation in the U. Senate, Am. The poor get what they want more often from Democrats. The rich get what they want more often from Republicans, but only if Republican constituents side with the rich. Thus, partisanship induces, shapes, and constrains affluent influence. Show More Congress is beset with other challenges as well, including high levels of partisan polarization, 26 Show More broad public disapproval, 27 Show More and a significant democratic deficit, most notably on account of the apportionment of the Senate and the existence of the filibuster.

Oppenheimer, Sizing Up the Senate: The Unequal Consequences of Equal Representation — documenting the policy and financial advantages that accrue to small states on account of Senate representation. Show More For these and other reasons, leading observers have decried Congress as the U. Show More To characterize the law of legislative representation as pluralist is not to defend Congress. To the contrary, one of the virtues of a pluralist picture is that it points toward new avenues for reform.

A brief disclaimer is in order before proceeding. This clarity comes at the cost of not engaging with important questions about the role of law in shaping who gets elected in the first instance. Thus, I do not discuss descriptive representation, the idea legislators should share demographic or other characteristics with their constituents. Nor do I engage in the debate among social scientists about the relationship between the number of minority representatives and the substantive representation of minority interests in legislative bodies.

Compare, e. The Case of the Redistricting, 55 J. Show More possible partisan biases in that process, 32 Show More and unequal representation in the U. See sources cited supra note Even with these limitations, however, a close look at the legal mechanisms bearing on representation can illuminate why legislators act as they do and how they might be incentivized to act differently.

In addition, space constraints preclude a full treatment of every type of law that shapes representation. The discussion that follows shows how different mechanisms—some from the law of democracy, some from legislative organization—can ratchet up or down different sorts of responsiveness.

But this treatment is illustrative rather than exhaustive. Many other legal rules shape responsiveness, sometimes directly such as rules concerning access to the franchise and sometimes indirectly such as rules regulating the media, which in turn shape the information ecosystem in which legislators operate. More fundamentally, representation is also constituted by foundational institutional design choices, such as the choice of a presidential rather than a parliamentary system, which are beyond my scope here.

The remainder of the Article proceeds as follows. Part I makes the case for a pluralist approach to representation. It argues that legislators have normative reasons to be responsive to their constituents, interest groups, and party leaders, and further argues against categorically placing any one duty or group above all others. The next two Parts show how specific legal rules roughly instantiate a pluralist approach to representation by pulling legislators in competing directions.

Part II examines the law of democracy. It notes that the reelection incentive encourages legislative responsiveness to constituents, but it also highlights how several areas of law weaken the links between legislators and their constituents and enable interest groups and party leaders to exercise considerable influence.

Part III conducts a similar inquiry for internal legislative organization. It shows how legislative organization can either enhance or constrain the ability of legislators to represent their constituents, the degree of interest group power, and the amount of influence that party leaders have over their rank-and-file members. Part IV turns to implications, both for the scholarly literature and for those seeking to reform a contemporary Congress widely perceived to be broken.

Some have used the term more broadly. Patty Murray D-WA. Johnny Isakson R-GA. Ronald Barber D-AZ. Mary Landrieu D-LA. But see Scott Shafer, Showhorses vs. Radio Oct. Nonelectoral mechanisms for the citizenry to engage with legislators do not create formal links between a single legislator and a discrete group of people. Under the once-common practice of formally petitioning Congress, for example, petitions were directed to Congress as a whole, not to specific legislators.

Abbott, S. Snyder Jr. Parties win shares of seats equal to their shares of the vote. The number of seats won by the party equals the number of seats times the share of seats it deserves. House ; Am. See Nicholas O. For a critical perspective on the normative case for proportional representation, see Charles R. Carolene Prods. But mechanisms promoting legislative responsiveness to interest groups can accomplish similar results.

Levinson, Rights and Votes, Yale L. Press Dahl, Who Governs? Dahl, Dilemmas of Pluralist Democracy: Autonomy vs. Control 1 Schattschneider, Party Government 1 ; see also Daryl J.

Nimmo ed. Parliament is a deliberative assembly of one nation, with one interest, that of the whole—where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole.

You choose a member, indeed; but when you have chosen him, he is not a member of Bristol, but he is a member of Parliament. His vote is not the vote of his State, but his own individually; and his constituents have not even the power of recalling him, nor of controlling his constitutional action by their instructions. Term Limits, Inc.

Thornton, U. They are not merely delegates appointed by separate, sovereign States; they occupy offices that are integral and essential components of a single National Government.

Carson, Gregory Koger, Matthew J. But, if they repeatedly vote in line with their district and against the party, then they may lose favor with the party leadership and risk sanctions. In addition to party leaders and general election electorates, legislators must also be mindful of their primary electorates, which are often more extreme than either party leaders or their constituencies as a whole.

See infra Subsections II. Post Aug. This theoretical stance contrasts with currently dominant theories, which view parties as controlled by election-minded politicians.

Such a theory, however, is probably not possible in [the] face of the manifold conditions that affect the choice of roles. General principles instructing legislators on which role to adopt usually prove inadequate. These ideas have a long lineage in both democratic theory, see, e. Stokes, Constituency Influence in Congress, 57 Am. Zalta ed. See supra notes 55—56 and accompanying text.

Fallon, Jr. See Bobbitt, supra note 71, at 6; David E. Samaha, Anti-Modalities, Mich. Gralike, U. Wood, The Creation of the American Republic: —, at To the contrary, constituents, interest groups, and parties would have clashed in the process of writing instructions.

But a right to instruct would have made representation simpler for the legislator , who would have merely been tasked with following the instructions that they were given. Parties, Working Paper No. Moreover, law might affect how legislators perceive their normative duties, even when it does not affect the content of those duties. Bert I. Huang, Law and Moral Dilemmas, Harv.

Legal F. Intuitive as single-member districts are in the United States, democratic representation does not require geographic districting. Nor, in earlier periods, did all view representation as requiring elections at all. Lee, Geographic Representation and the U. Congress, 67 Md. While most Americans take geographic constituencies for granted, Lee contrasts U. See supra Section II. B, Subsections III.

But at least one other area of law likewise treats the legislator-constituent relationship as distinct: the franking privilege allows members of Congress to send postage-free mailings to constituents but not to non-constituents.

Evidence also suggests that legislators want to be responsive to constituent opinions, at least in some circumstances. Results from a Field Experiment, 6 Q.

But legislators who are not incentivized to act as delegates for the preferences of their constituents are not likely to turn to trustee-style representation. Instead, they are likely to opt for responsiveness to groups other than their constituents, such as interest groups from outside their districts or their political parties.

See infra notes —17 and accompanying text elaborating on this dynamic. Design choices that weaken responsiveness to constituents are not necessarily unjustified, as there are often other reasons to support such designs. Longer terms, for example, allow legislators to accumulate expertise and incentivize legislators to invest energy in the policymaking process. Similar arguments could be made in support of other mechanisms that temper electoral accountability to constituents.

Code Ann. Niemi eds. Carey, Richard G. Powell, Term Limits in State Legislatures Vera, U. Snyder, Jr. Post-Gazette, Apr. When representing a heterogeneous district, a legislator must solve a more complex decision-making calculus, not only for roll-call votes, but for time and resource allocation.

Stephanopoulos, Redistricting and the Territorial Community, U. Elections Bd. To be an effective representative, a legislator must represent a district that has a reasonable homogeneity of needs and interests; otherwise the policies he supports will not represent the preferences of most of his constituents. Jeff Bingaman D-NM. Stephanopoulos, Spatial Diversity, Harv. Elected officials from spatially diverse districts are indeed more sensitive to partisan pressures than to the evident interests of their constituents.

State Libr. Gingles, U. Stephanopoulos, Our Electoral Exceptionalism, 80 U. Before leaving the topic of district composition, note a tension between district homogeneity and district competitiveness. This tension points toward two distinct ways of promoting an electoral connection between legislators and constituents. But it is clear that district composition matters for how legislators go about representing their constituents.

Evidence from Financial Services Legislation, 45 J. Synder Jr. See also Lynda W. Keisling , F. Sorrell , F. Randall v. Sorrell , U. Women Representing Women. New York: Routledge. Childs, Sarah, and Mona Lena Krook. Childs, Sarah and Joni Lovenduski. The Oxford Handbook of Gender and Politics. Oxford: Oxford University Press, pp. Cullen, Pauline. Dahlerup, Drude. Dahlerup, Drude, and Monique Leyenaar eds. Breaking Male Dominance in Old Democracies.

Oxford: Oxford University Press. Dancygier, Rafaela. Dilemmas of Inclusion. Muslims in European Politics. Princeton University Press. Dodson, Debra. The Impact of Women in Congress. Evans, Elizabeth. Franceschet, Susan, and Jennifer Piscopo. Krook, Mona Lena. Lombardo, Emanuela, and Petra Meier. Burlington: Ashgate. Lovenduski, Joni, and Pippa Norris. McBride, Dorothy, and Amy Mazur eds. Philadelphia: Temple University Press. Paxton, Pamela, and Melanie Hughes.

Women, Politics, and Power. Thousand Oaks, Sage. Peters, Yvette, and Sander Ensink. Pitkin, Hanna. The Concept of Representation. Berkeley: University of California Press. Rashkova, Ekaterina R. Evidence from Bulgaria. Rosset, Jan. Economic Inequality and Political Representation in Switzerland.

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