The Beginning of the End of the Progressive Era in State Constitutional Law?

For the last 100 years or so, many state constitutions have included provisions that create alternatives to representative and political party mediated democracy. The Progressive Era was marked by proposals to reform the structure of all levels of government, and state constitutions and local charters bear its marks today. The initiative and referendum, non-partisan elections, and recall provisions were understood as methods to use constitutional law and institutional design more broadly to create an alternative to representative democracy, a way to break the lock interest groups and political party organizations had over state politics. Later, Progressive-Era inspired ideas, like non-partisan redistricting commissions, took off, with a number of states seeking to remove politics from the districting process.

We have not seen the end of these provisions. But I am beginning to wonder whether we are currently seeing the beginning of the end for some of them. At the very least, across very different kinds of states, we are seeing pushback on Progressive Era and Progressive Era-style governing institutions.

In California, the failed recall of Governor Gavin Newsom has generated a huge amount of criticism of recall elections as a tool of state democracy. Erwin Chemerinsky and Aaron Edlin wrote an op-ed arguing that California’s peculiar recall system is unconstitutional. Democrats in California of all stripes have called for a repeal of repeals. Even the extremely goo-goo-ish New York Times thinks that the California process is problematic, even if it won’t go as far as rejecting recalls entirely. The things that made Newsom vulnerable were the unpredictable turnout in recall elections and the anti-incumbent bias built into the structure of the law, where the incumbent loses if he does not get 50%, but any replacement only needs to win a plurality. For Progressives, these were features of the system, a way of breaking the control parties exercised over ordinary elections, allowing mass democracy to overcome party democracy. But in a world where general election outcomes are predictable, such variation is increasingly intolerable to the majorities of voters and politicians who run California.

In Mississippi, a state court effectively ended the use of the initiative in the state through a less-than-perfectly-obvious form of constitutional interpretation. In many other states, state legislatures have sought to repeal or undermine laws enacted through initiatives. In these states, largely Republican dominated, initiatives have been an important lever for out of power liberal groups to propose policies from Medicaid expansion to minimum wage increases that can garner majority support among voters but cannot get through the legislature.

In New York, the state legislature is setting the stage for casting aside its recently enacted bipartisan redistricting commission. Because other states are engaging in aggressive gerrymandering to help Republicans in the House of Representatives, New York’s dominant Democratic Party is planning on abandoning a neutral redistricting system so they can flip as many as 5 seats. In states sticking to their non-partisan redistricting systems, like Colorado, politicians are excoriated for being non-partisan suckers in a partisan world. “We’re fucking idiots,” said one Colorado Democratic state legislator, agreeing with critics.

There’s more. Other Progressive Era reforms are under stress. The secret ballot (sometimes known as the Australian or Massachusetts Ballot), is going the way of the Dodo bird in a mail-in-ballot world. Some state political parties have grown skeptical of party primaries, instead turning to state conventions.

The reason for each of these moves is the most powerful force in American politics, party polarization. Majority coalitions in California, Mississippi, New York and many other states see the types of variation created by Progressive Era governing rules – in who serves in state office, who wins national level office, and in what legislation gets passed – as a threat to their entrenched power.

Seems bad! But these critics of Progressive reforms also rightfully argue that these forms of democracy often lead to less representative outcomes. There is a long debate about how much voters in initiatives know about what they are voting on and how direct democracy effects the responsiveness of government more broadly. But outside of very high-profile initiatives, it is quite clear that voters often know very little about the decisions they are asked to make and aren’t given useful tools to help them decide, as Chris Elmendorf and I argue here. Although turnout in Tuesday’s California gubernatorial recall was high, recall elections often have low turnout, like other off-cycle elections, and thus less majoritarian outcomes. States that adopt non-partisan Congressional districting systems deprive their majorities of the ability to draw advantageous districts, when other states and their majority coalitions are pressing their advantages. Doing so is like bringing a wet noodle to a gunfight. If non-partisan commissions succeed more often in Democratic-dominated states, it will almost surely lead to a Congress that is (even) less representative of a majority of voters.

However, this less-crass and often quite convincing argument for the superiority of general-election, party-driven representative democracy shouldn’t stop with challenges to Progressive Era reforms. Instead, it should be extended to oppose Jacksonian-era state constitutional policies. One of the central state constitutional legacies of the Jacksonian period was the decision to make lots and lots of offices directly elected. But having tons of elected state and local officials – from district attorney to dog catcher, from state railroad commission to board members for state universities -- does not serve the interests of representative democracy. Voters generally do not know who these officials are; there is little general election competition in these races; and there are good reasons to think elected officials underperform appointed officials in many offices (for instance, cities with elected local treasurers face higher borrowing costs). Holding elections for offices when voters do not anything about the candidates or what the office does is bad for representation; voting simply tracks national level party preferences. The ends of representative democracy are better served by having strong state and local executives, who can appoint officials for many positions. Voters can monitor these officials and can differentiate from their co-partisans in Washington (at least to some extent).

Further, voters should try to make party democracy at the state and local level more real by supporting reforms that lead to the creation of state-specific political parties, or at least state parties that are differentiated in from their national parents in voters’ minds and that actually contest state elections on state issues. The lack of competition in general elections in states like California and Mississippi, and the extent to which state legislative elections track Presidential ones, are powerful arguments for Progressive Era governing institutions. Neither California nor Mississippi has two political parties actively contesting elections along issues decided by the state legislatures in those states. As a result, initiatives and referenda (or even recalls) look less bad than they otherwise might, as state elections are not necessarily producing representative or accountable outcomes either.

One final thought is that this push against Progressive Era constitutional reforms should make everyone in the Con Law game a little more modest. Much of the constitutional design literature – with its consociationalists, centripetalists and others – is about how to develop institutions and electoral rules to generate political competition that takes certain salutary forms. And constitutional and institutional design certainly can do that, driving parties and politicians to behave in different ways. The Electoral College forces Presidential candidates to campaign in certain ways, for better or worse. “Distribution requirements,” that require candidates to get a certain percentage of votes in most states, discourage regional candidates. I’ve written in this space and made these moves too.

But politics moves for reasons other than constitutional design. Developments in media and technology, global ideological trends, and a changing economy each cause politicians and parties modify their strategies and behaviors. Famously, the U.S. Constitution was not designed with political parties in mind, and yet they appeared quickly after its adoption.

The Progressive Era reforms were designed to create an anti-party democracy. Despite this, the nationalization of politics and media markets have created strong parties and party polarization, even in states with Progressive Era constitutional structures. State constitutions have pushed back on the effects of polarization in some contexts, but polarization is now clearly pushing back on those state constitutions. These forces flow in both directions.