Academic journal article Boston University Law Review

The Electoral College and Presidential Particularism

Academic journal article Boston University Law Review

The Electoral College and Presidential Particularism

Article excerpt

Congressional scholars have long observed that electoral incentives encourage Members of Congress to prioritize the needs of their local constituencies over those of the nation as a whole. Indeed many analysts have pointed to increasingly gerrymandered and ideologically extreme districts as a major cause for the current dysfunction in Congress. As a result, scholars from across subfields have called for increased delegation of policymaking authority to the President as a partial solution to our current malaise. We argue, however, that inequality embedded into the very structure of our presidential electoral system incentivizes Presidents to also engage in particularistic politics. That is, Presidents, like Members of Congress, routinely pursue policies that disproportionately benefit Americans in constituencies likely to be most important in the next election. In this Article, we review evidence for such electorally induced particularism in the allocation of federal grants, the imposition of protectionist tariffs, and the provision of federal aid to states following natural disasters. While Presidents have always had incentives to engage in particularistic policies, the electoral incentives to do so have increased in recent years as the margins in presidential races have narrowed significantly.

INTRODUCTION

When searching for the quintessential image of dysfunction in our contemporary politics, most Americans instinctively think of the United States Capitol. They do so with good reason. Until the passage of omnibus legislation in January 2014, Congress has not managed to pass a complete budget - perhaps its most basic constitutional duty provided for in Article I - since 2005.1 A small band of extremists brought the country to the brink of default in 2011, causing the country to lose its AAA credit rating. And a mere two years later, the same members hurled themselves, lemming like, toward the precipice of the fiscal cliff, only to be rescued by an eleventh hour deal that narrowly avoided default and reopened the government, which had been shut down weeks earlier. Meanwhile other key national priorities, from comprehensive immigration reform, to tax reform, to deficit reduction, and entitlement reform go unaddressed with little hope for serious legislative action in sight.

Potential sources of Congress's institutional dysfunction are clear and well known. The vast majority of members are now elected in "safe" districts. Insulated from genuine partisan competition, extremists within both parties have used primaries to elect ideologically extreme candidates to the nation's legislature, particularly on the Republican side of the aisle.2 The result has been levels of partisan polarization in Congress not seen since the early twentieth century.3 Within Congress there has been almost a complete breakdown of "the regular order," as perhaps best exemplified in the failures of the budgetary process. And in the upper chamber the use of filibusters has skyrocketed to such an extent that journalists routinely write that sixty votes are required to accomplish virtually anything of interest in the Senate. Finally, the true power brokers in both chambers all too often appear not to be party leaders in the mold of the respected dealmakers of yesterday, but rather an unusual cadre of extremist celebrity seekers more interested in stealing the media spotlight for themselves and their ideological causes than in the business of actual governance.

What is the end result? Legislative productivity is approaching the lowest levels on record in the modern era,4 and Congress's approval rating has plummeted as low as the single digits.5 What then is to be done? One logical answer according to many scholars has been to delegate even greater authority to the executive.

For example, Justice Elena Kagan has written at length defending the growth of what she has termed "presidential control of administration," which began with the centralization of regulatory policymaking within the Office of Management and Budget (OMB) during the Reagan Administration. …

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