Democracy, regulation, and participatory governance

In an era of democratic crisis and erosion, what would a more robust and inclusive democratic politics look like? In these projects, I explore how we might better design institutions and reform organizations to create a more equitable and inclusive balance of political power, and enable more direct and empowered forms of participatory governance. I approach these questions by foregrounding the relationships between power, institutional design, and social movements; and by looking at case studies of how institutional design shapes the dynamics of participation, power, and accountability at both federal administrative agencies and local government bodies. 

In my first book, I argued for the potential of institutionalizing greater participation and a more equitable balance of policymaking power and influence through reforms to the federal administrative state. In a forthcoming book co-authored with Hollie Russon Gilman, we expand on these themes to look at case studies of how institutional reform and new models of organizing and social movement strategies can redress disparities in political power and the failures of contemporary American democracy.

(Re)Constructing Democracy in Crisis

UCLA Law Review, Vol. 65 (2018) (online at SSRN here, or at UCLA Law Review here)

Contemporary concerns about democratic backsliding in the United States and elsewhere have produced an important new literature on democratic crisis and the ways in which political actors can undermine institutions and norms of constitutional democracy. This Article complements the democratic backsliding discourse by focusing on another set of questions: In what ways has democracy been chronically or systemically weakened and prevented, and what kinds of new institutional and organizational forms do we need to realize democratic aspirations in the twenty- first century? To develop this argument, this Article advances three main points. First, while the backsliding literature has thus far tended to focus on the sociological and institutional factors shaping the collapse of democratic regimes, this Article begins from the inverse premise: the sociological and institutional factors that affirmatively facilitate democratic equality, inclusion, and political action (Part I). This exploration of the affirmative drivers of democracy helps cast into sharper relief the more systemic and chronic ways in which current political and institutional dynamics make genuine democratic equality and participation impossible for many constituencies. In particular, democracy is undermined not only by more chronic crises of unequal power but also by systemic exclusion (Part II). This critique in turn helps inform an affirmative account of democracy-building reforms and movements (Part III).

Policymaking as Power-Building

Southern California Interdisciplinary Law Journal, Vol. 27 (2018) (online here)

The problem of balancing power through institutional design — always a central concern of constitutional theory — has taken on even greater salience in current scholarship in light of contemporary concerns over economic inequality and failures of American democracy today. This paper extends these concerns into the realm of administrative law and the design of regulatory policy. I argue that in an era of increasing (and increasingly interrelated) economic and political inequality, we must design public policies not only with an eye towards their substantive merits, but also in ways that redress disparities of power. In particular, we can design policies to institutionalize the countervailing power of constituencies that are often the beneficiaries of egalitarian economic policies, yet lack the durable, long-term political influence to sustain and help implement these policies over time.

This concept of “policymaking as power-building” rests on a descriptive and normative claim. Descriptively, the paper shows how historical and contemporary analyses of administrative governance indicates that regulatory institutions and policies are already involved in shaping and responding to the balance of power among civil society groups. Normatively, the paper argues that this reality should be harnessed to pro-actively design policies that mitigate power disparities, and in so doing promote greater democratic responsiveness through regulatory policy design. The paper develops this argument through case studies of power-balancing policy design in local regulatory bodies around economic development initiatives, and in federal regulation around the case of financial reform. The paper then theorizes a more general framework for designing similar power-shifting policies that are portable across substantive areas of law and policy and across federal, state, or local level administration. This framework should be of interest to policymakers, advocacy groups, and other practitioners designing regulatory policies and concerned about dangers of capture and disparate influence.

This account of policymaking as power-building synthesizes literatures in law, social science, and political theory to offer a more institutionally-rich account of power and the interactions between constituencies on the one hand and policymaking institutions on the other. It also extends the current debates on power and public law, law and inequality, and administrative and local government law.

NB: Preliminary drafts of this argument were presented at the Scholars Strategy Network and Ford Foundation convening on "Purchasing Power" here.  

Reconstructing the Administrative State in an Era of Economic and Democratic Crisis

Harvard Law Review, Vol. 131 (2018) (online at HLR here or on SSRN here.)
Harvard Law Review, vol. 131, forthcoming (2018) [Reviewing Jon Michaels' Constitutional Coup]. This Review engages Michaels’s important work, situating it in con- text of these wider economic and social battles to sketch a broader claim. The defense of the administrative state, this Review argues, is not just about assuring checks and balances; it is about preserving democracy — the idea that, through political institutions, we the people expand our capabilities and capacities to remake social and economic systems that are otherwise beyond the scope of individuals, associations, or ordinary common law. It is also about democracy in its substantive connotation: through the administrative state, we make possible the realization of substantive democratic values of equality and inclusion. 

From Civic Tech to Civic Capacity: The Case of Citizen Audits

Political Science and Politics. July 2017. (online here).

This paper identifies and theorizes an important mode of participatory governance: citizen audits -- the organized, strategic use of participatory monitoring techniques to hold government actors accountable. Citizen audits offer a unique mechanism for generating political accountability and redressing disparities of capture, corruption, or power. Citizen audits achieve this by catalyzing the mobilization and organization of civil society actors. By combining this mobilization with policy-relevant data-gathering, citizen audits generate pressure and influence on policymakers. Citizen audits are thus, crucially, not about a utopian or idealistic appeal of civic engagement; rather they are realistic and urgent responses to fundamental failures of governance and disparities of political power. As this paper will argue, citizen audits represent a mode of participation that is importantly distinct from two of the prevailing discourses in present-day debates about democracy, civic engagement, and governance reform.

Producing Democratic Vibrancy. 

Brooklyn Journal of Law and Policy, 2016  (online here) 

In the years since Citizens’ United v. Federal Election Commission, the contours of the debates over the First Amendment, free speech, and democracy are by now familiar. On the one hand, there is the anxiety that economic wealth — whether from corporations or wealthy individuals — could effectively purchase political influence through the mechanism of unregulated campaign contributions and expenditures or independent expenditures on electoral advocacy. On the other hand, there are concerns about attempts to regulate such campaign contributions and expenditures as governmental interference with the freedom of speech. I share in both these concerns — that economic wealth generates disparities in political power and influence, and that we need a variety of legal protections and structures to secure the political freedoms that make democracy possible. But in this short essay, I suggest that we need to broaden how we conceptualize the elements of democratic vibrancy and responsiveness, while recognizing that this change will have important implications for the legal and policy debates around democracy reform. In short, I argue that a vibrant democracy is not just one that protects free speech and electoral accountability; it is also one that empowers a wide range and diversity of constituencies to not only consume speech, but also to produce it, to be fully empowered political actors with the opportunity to shape and participate in the political process as more than just voters.  I suggest that we approach the theory of democratic vibrancy and failure from a different angle: the degree to which individuals and communities are empowered to act not as voters “consuming” political speech, but rather as producers of political speech and democratic action — as fully-fledged political agents capable of mobilizing, organizing, advocating, and running for office. This shift in focus to the potential inequities and disparities in the production of political speech and action points to a second important reorientation in this debate, away from the narrow focus on First Amendment doctrine and campaign finance reform — as important as these issues are — to the much broader set of laws, institutions, practices, and norms that comprise our foundational infrastructure for democratic vibrancy. Our toolkit for assuring a robust democratic polity involves a much wider range of possible reforms and interventions extending beyond electoral financing to encompass the very design and operation of the institutions of ordinary policymaking — and we will need all of these tools, not just doctrinal or campaign financing ones, to address the failures of twenty-first century American democracy. 

Envisioning the Regulatory State: Technocracy, Democracy, and Institutional Experimentation in the 2010 Financial Reform and Oil Spill Statutes.

Harvard Journal on Legislation Vol. 48 (2011). (online here)

In the summer of 2010, Congress considered legislation responding to two very different policy crises: the Dodd-Frank financial reform bill responding to the 2008-9 financial crisis, and the CLEAR Act responding to the Deepwater Horizon oil spill in the Gulf of Mexico.  While addressing different policy issues, both of these statutes were centrally concerned with reforming the structure of the regulatory state itself to promote more effective policymaking, particularly in response to fears of agency capture, and a lack of responsiveness or accountability.  This paper analyses the two statutes side-by-side as exhibiting a common set of visions and concerns about the regulatory state.  On the one hand, both statutes exemplify a technocratic impulse common in American political thought and policy.  Under this approach, regulatory effectiveness is promoted by expanding the expertise, coordination, and political insulation of agencies.  But at the same time, both statutes engage with a range of experiments with moredemocratic regulatory reforms—expanding participation in regulatory policymaking, establishing formal mechanisms for interest representation, creating additional democratic counterpublics where citizens can engage and policies can be innovated, and promoting vertical accountability within corporations.  While these debates about democracy and the regulatory state are long-standing ones in administrative law, these statutes raise some innovative institutional approaches that together hint at a potentially fruitful alternative framework for regulatory reform, one that harnesses the potential of democratic politics to respond to concerns about agency capture, responsiveness, legitimacy, and accountability.

Infrastructure Crisis: inequality and the crisis of American democracy. Knight First Amendment Institute blog. May 2018. (Online here.)

In the aftermath of the 2016 election, there has been a fiery and sustained discussion about the crisis of American democracy and the potential risk of America descending into autocracy. But there is a deeper crisis in American democracy arising from the interactions between political and economic inequality. When economically wealthy constituencies and organizations, from individual donors to big business, can exercise outsize influence on legislators and regulators, democracy cannot function properly. When racial minorities and other groups are systematically excluded from voting or have their votes diluted through gerrymandering or lack the same degree of access to media and online platforms, democracy founders. In the Spring of 2018, the Knight First Amendment Institute and the Columbia Law Review sponsored a symposium exploring the possibilities for novel approaches to First Amendment doctrine that might be more sensitive to these problems. The discussion highlighted an important theme for the First Amendment, public law, and the improvement of democracy in the United States. A genuinely inclusive democracy requires laws and regulations that go beyond current doctrines on freedom of speech or even guarantees like voting rights. The approach must be truly expansive, assuring fair and equal access to the very infrastructure of democracy.

Building Civic Capacity in an Era of Democratic Crisis. With Hollie Russon Gilman. New America - Participatory Governance Program. October 2017 (online here)

For several years now, the institutions of American democracy have been under increasing strain. Widening economic inequality, the persistence and increased virulence of racial and ethnic tensions, and the inability of existing political institutions to manage disputes and solve problems have all contributed to a growing sense of crisis in American democracy. This crisis of democracy extends well beyond immediate questions about elections, voting, and the exercise of political power in Washington. Our democratic challenges are deeper. How do we develop institutions and organizations to enable civic engagement beyond voting every few years? What kinds of institutions, organizations, and practices are needed to make public policies inclusive, equitable, and responsive to the communities they are supposed to serve? How do we create a greater capacity for and commitment to investing in grassroots democracy? How can we do all this while building a multiracial and multiethnic society inclusive of all? The current political moment creates an opportunity to think more deeply about both the crisis of American democracy today and about the democracy that we want—and how we might get there. Few scholars or practitioners would content themselves with our current democratic institutions. At the same time, generating a more durable, inclusive, and responsive democracy requires being realistic about constraints, limitations, and tensions that will necessarily arise. In this report we sketch out some of the central challenges and tensions we see, as well as some potential avenues for renewal and transformation. Based on a convening at New America in Washington, D.C. and a series of ongoing conversations with organizers, policymakers, and scholars from around the country, we propose a framework in this report to serve as a resource for continuing these important efforts in pioneering new forms of democratic governance. 

The Key to Making Economic Development More Equitable Is Making It More Democratic. The Nation, April 2016 (online here)

How Oakland and other cities are experimenting with efforts to make local residents active participants in the development process.

Rethinking Regulation. Roosevelt Institute April 2016  (online here) [POLICY PAPER]

A more inclusive economy depends on an inclusive political process. Regulatory agencies are central institutions in economic policymaking, yet regulators remain vulnerable to undue political influence from established business and industry interests. How then can we reinvent regulation to be more accountable and responsive to the public at large? This white paper provides a progressive framework for addressing the problem of regulatory reform. The paper argues that instead of seeking to undo regulations or further insulate regulators, we must instead pursue reforms that expand participation and representation for a more inclusive set of stakeholders within the regulatory process itself.

Fighting Inequality in the New Gilded Age. Boston Review, September 2015 (online here)

A review of new research on how participatory government can help counteract economic inequality.

Is Participatory Rule-Making Possible? The Nation, March 2012 (online here)

By giving people a direct voice in shaping regulations, we can make agencies more responsive and accountable, and give citizens a direct stake in policy-making.