Month: July 2024

The Black Robes

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July 28, 2024

by Stephen Stofka

This week’s letter continues my look at a method of judicial interpretation called textualism. For fifteen years, I have been writing regularly, trying to understand systems of power and thought that are bigger than my readers or myself. We are often unaware how much our daily lives are shaped by some ethical philosophy that guides the institutions that determine the rules we live by. Over the past two decades, the Roberts’ Court has increasingly used textualist interpretation to upend decades of precedent. The Court has overturned Roe, and several justices have same sex marriage protections in their sights as the next precedent to fall. They have redefined the Second Amendment as an individual right and set severe restrictions on affirmative action considerations used in college admissions.

The economist John Maynard Keynes once commented that we were slaves to the ideas of some defunct economist. The same can be said about judicial interpretation. Justice Scalia, the leading proponent of textualism on the Supreme Court, died several months before the 2016 election. Fellow Justice Alito indicated the reverence that conservative justices had for Scalia’s reasoning when he commented that they would ask “What would Scalia do?”

Stephen Breyer, another Associate Justice on the Court who retired in 2022, often held public debates with Scalia. In his book Reading the Constitution: Why I Chose Pragmatism, Not Textualism, Breyer recalls the irresolvable issues between the two justices. Breyer placed greater weight on the purpose of a law. Scalia emphasized the statutory text of a law and the “text’s original public meaning” (p. 28), a sub-branch of textualism called originalism. Sometimes a strict textualist approach conflicts with or contradicts an originalist approach. Richard Epstein (2014, p. 54) cautioned, “it is a dangerous mistake to conflate any form of originalism which asks how texts were understood when written, with strict textualism, which ignores those necessary but implied exceptions.”

Breyer (p. 25) writes that Scalia thought the textualist approach would create what Scalia himself called a “science of statutory interpretation.” In the 19th century, Jeremy Bentham, a founder of an influential philosophy called utilitarianism, wanted to become the “Newton of morals.” Bentham invented a “felicific calculus” to bring scientific and objective analysis to moral and ethical controversies. The calculus focused on the effect of an action, not its nature or the parties involved. Bentham’s goal was to design a system of moral reasoning that would make judicial sentences proportionate to the effect of a crime. A stolen chicken was a stolen chicken. It didn’t matter who was the owner of the chicken. Novel in its approach at the time, it has become the foundation of law, ethics and economics but the calculus itself seems rather quaint to students who are introduced to it in an ethics class. Like Bentham, Scalia wanted to develop a set of rules of judicial interpretation that would guide the drafting of statutes in Congress. Unfortunately, the Court’s textualist reasoning has created confusion in the lower courts.

Some of the confusion arises from the inconsistent application of textualist methods by the conservative justices. In the District of Columbia v Heller majority opinion authored by Scalia, he disregarded the first half of the text of the Second Amendment. The Amendment had been written to assure the state legislatures that the new federal government could not call up state militias, then collect their muskets and disband the militia, leaving states powerless against an autocratic federal government. In his majority opinion, Scalia dismissed the first half of the text as a prefatory clause imposing no limit on the meaning of the second half of the amendment’s text. That decision highlights the difficulty, if not impossibility, of being objective in legal or moral reasoning.

Ethicists have long grappled with a grounding problem, establishing a moral foundation for ethical evaluation. The folks at Crash Course Philosophy have an informative video. (I set the  playback speed to .75 to digest all the points they present). In ancient Greece, Socrates asked Euthyphro if the gods loved the pious because it was pious, or was something pious simply because the gods loved it. Twenty-five hundred years later, ethicists and jurists have not resolved this question, known as the Euthyphro dilemma. Is something inherently just or right, or do we simply make it so? Neither Scalia nor Bentham could escape the inherent self-centeredness of our perceptions. In Einstein’s terms of space-time, we are like the sun that bends the space around it. We bend the information that we receive so that it is difficult to find any objective agreement among human beings that will persist across time and culture.

The subjectivity of our perceptions can defeat any methodology in search of an unambiguous objectivity. I will pick a case from the Court’s current term to illustrate how textualist analysis can reach very different conclusions. Snyder v United States was a case testing the distinction between bribery and gratuity. James Snyder was a former mayor of Portage, Indiana who was charged and convicted of violating a federal law for a payment he received following the award of a contract for the purchase of some garbage trucks. Snyder was charged under §666 (the curlicue symbol denotes “paragraph”) of Title 18 of the U.S. Code:

“corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000or more.” §666(a)(1)(B).

Snyder argued that he did agree to any payment before the transaction and that   §666 applied only to bribes. Writing for the majority opinion of six conservative justices, Justice Kavanaugh distinguished between bribery, a payment before an act, and a gratuity, a payment after an act:

either (i) a reward given after the act with no agreement beforehand (gratuity)

or (ii) a reward given after the act pursuant to an agreement beforehand (bribe).

Although Kavanaugh distinguishes the two, why did Congress expand the scope of the law by including “or rewarded?” If they meant that §666 of the statute to apply only to bribery, they could have left the text unmodified. The addition to the text indicated to the dissenting three justices that Congress intended the amended text to apply to payments before and after the fact. However, a strict textualist approach ignores legislative history. Kavanaugh justified his reasoning because of the placement of an adverb “corruptly” in the statute. Kavanaugh looked to §201(b) covering bribery and §201(c) of the statute governing gratuities and found that only §201(b) used the word. Therefore, Kavanaugh reasoned, the use of “corruptly” in  §666 limits its application only to bribery.

The bribery statute for federal officials, §201(b), uses

the term “corruptly.” But the gratuities statute for federal

officials, §201(c), does not. The term “corruptly” therefore

signals that [18 U.S.C.] §666 is a bribery statute. And statutory

history, statutory structure, statutory punishments,

federalism, and fair notice strongly reinforce that textual

signal and together establish that §666 is a bribery statute.

Writing the dissenting opinion, Justice Jackson wrote, “To reach the right conclusion we need not march through various auxiliary analyses: We can begin—and end—with only the text.” Justice Jackson referred to a separate §215 that targeted bank employees who accepted bribes and gratuities. That  section of the text was used as a model for the language in §666, according to the House Reports of Congress at the time, and §666 duplicates the wording of §215. The majority opinion disregarded that salient fact.

At the heart of this controversy and others is the conservative dislike of federal interference in state affairs, a breach of federalism, mentioned twelve times in Kavanaugh’s opinion. Here is one example: “Interpreting §666 as a gratuities statute would significantly infringe on bedrock federalism principles.”

Congress awards federal money to states for various purposes, but local officials complete the transactions with national and local companies. It is perfectly understandable that Congress did not want local officials to profit from the disbursement of federal funds. However, Congress effectively made all jurisdictions subject to the law, expanding the scope of federal regulatory power. The federalism principle is nowhere in either the Constitution or the relevant statute but captures the idea of boundaries and separation of powers implied in the Constitution. Given that aversion to an expansion of power, a skilled jurist can use textualist analysis to serve whatever purpose they want.

A recurring theme in former Justice Breyer’s book is that textual analysis is as arbitrary as the traditional analysis it was meant to replace, an analysis guided by the purpose of a piece of legislation. Scalia thought that textualist interpretation would produce a set of rules that would guide legislators as they wrote the law. Out of all the justices on the Court, only Stephen Breyer had worked for a time in a legislative function, serving as counsel on Senator Edward Kennedy’s staff. Scalia knew little of the negotiations and deliberate obfuscations that legislators employ to build a consensus to pass a law. The ambiguity in statutory text is deliberate in some cases. Just as with the executive and legislative branches, justices have points of view, and they use their talents and experience to reinforce their perspective. Don’t be fooled by the black robes. There are human beings beneath the cloth.

These past weeks I have explored some aspects of the law as they relate to expectations. Because I am not a lawyer or a constitutional scholar, the research for these topics requires more time. I hope that readers have learned a bit as I expanded my own knowledge of these topics. I apologize in advance for any faults or omissions. Next week, I intend to turn to several topics on investment, the tradeoff between our current self and our future self when we delay consumption and save money.

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Photo by Gene Gallin on Unsplash

Keywords: ethics, utilitarianism, bribery, gratuity, textualism, originalism

Breyer, S. G. (2024). Reading the constitution: Why I chose pragmatism, not textualism. Simon & Schuster.

Epstein, Richard Allen. (2014). The classical liberal constitution: The uncertain quest for limited government. Harvard University Press.

The Reins of Judicial Power

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July 21, 2024

by Stephen Stofka

This week’s letter is about an alliance of business interests and libertarians alarmed by the growing power of the federal government that emerged during the 1930s Depression and enabled by a shift in judicial interpretation on the Supreme Court. In the following decades, executive agencies expanded their authority by assuming powers held by each of the three branches (Epstein, 2014). The agencies wrote rules like a legislature, administered the rules with or without the assent of the President, and resolved controversies in legal interpretation like the judiciary. When the Court’s decisions challenged the traditions of religious groups, social conservatives joined the coalition.

Social unrest in the 1960s followed by political turmoil and economic stress in the 1970s accompanied a generational shift in power in the Congress. A coalition of civil rights advocates  and environmental activists helped pass legislation in both areas. In the southern states where resistance to federal control was still active a century after the Civil War, voter sentiment began to shift from the Democrat Party to the Republican Party. Extractive industry groups increased their lobbying efforts to check environmental laws that increased their costs or delayed their projects (Kraft, 2022). In the 1970s, environmental activist groups turned to the courts to block industrial developments (Smith, 2022). Many of these controversies occurred in federal district courts where 860 justices with life tenure decided the application of the rules. Business groups recognized the need for judges sympathetic to any judicial philosophy that promoted a diffusion of government power to the states and individual business interests. Large corporations, enjoying many of the legal rights of individual persons since the 19th century, had revenues greater than those of many state governments, allowing big businesses the power to steer state and local policy toward maximizing profits.

A hybrid form of judicial interpretation called textualism/originalism was an effort to develop objective rules of jurisprudence to guide decisions in the lower courts. Textualism focuses on the legislative text while originalism focuses on the history of statutes and the Constitution (Eyer, 2022). Together the rules encourage justices to stay faithful to the text, history and tradition of the law. Six justices on today’s current Supreme Court hold the reins of this team of horses, which sometimes pull in opposite directions. Four decades in development, textualism and originalism have not brought the sought after clarity. Lower courts have sometimes responded with contradictory decisions to recent Supreme Court precedents, resulting in a judicial recycling of controversies in which the Court clarifies an earlier precedent.

As executive agency power expanded in the decades following World War 2, the Supreme Court expanded individual rights in its interpretation of the 14th Amendment. Richard Epstein (2014, p. 121) voices the conservative sentiment when he called this period a “veritable explosion of new rights.” The 1973 Roe v. Wade decision overruled state laws that prohibited abortions at various stages in a pregnancy, determining a right to privacy in the 14th Amendment. Social conservatives, business interests and libertarians formed an alliance of think tanks to limit the expansion of judicial and executive power.

Conservatives decried the Court’s Roe v. Wade decision upon its publication. In an interview late in her life, liberal Justice Ginsburg faulted the reasoning the court gave in that decision. She explained that the decision should have been based on a principle of gender equality clearly stated in the 14th Amendment. The Court’s ruling, based on a presumption of privacy, left the decision vulnerable to repeated attacks by groups of social conservatives. A coalition of religious groups, still angry over the Court’s 1962 decisions banning prayer in schools, now found common cause with business interests angry about the expansion of executive agency power.

For some foundational understanding of this revolution in judicial interpretation, readers will remember that the Bill of Rights was a package of ten amendments submitted to the states for ratification in conjunction with the Constitution. They applied to the federal government and were meant to assuage any concerns that this newly created federal government would impinge on the rights and power of state legislatures and the small number of individual citizens allowed to vote in each colony (Klarman, 2016). The enumerated powers stated in the Constitution was designed to define and contain the powers of the federal government but left unsettled or undefined powers to the states. In the century following ratification, the Court’s rulings gave preferential treatment to state autonomy in controversies over Bill of Rights protections. The Supremacy Clause of the Constitution gave the federal government priority if a federal law contradicted state law, but if there was no federal law resolving a controversy, state law took precedence. Separation of powers included the three branches within the federal government and between the federal government and the states.

For an evolving history of jurisprudence, I will turn to the National Constitution Center, a bipartisan independent organization authorized by Congress to educate the public on the history, text and meaning of the Constitution. They offer a free curriculum of classes on the Constitution for readers who want to expand their knowledge of the controversies related to the Constitution and its Amendments. What follows is a synthesis of a class section on selective incorporation, the Court’s application of protections for individuals to the states law.

Following the passage of the 14th Amendment, several Supreme Court decisions limited its protections against state abuses. In the 1925 Gitlow v. New York decision, the Court held that a state could not violate an individual’s First Amendment rights. In the 1960s the Supreme Court, headed by Chief Justice Earl Warren, further expanded individual rights, reasoning that the due process and equal protections guaranteed by the 14th Amendment made Bill of Rights protections applicable to the states as well as the federal government.

Before the rulings of the Warren Court, individuals had few protections against abuses by state governments. States routinely violated protections against search and seizure contained in the Fourth Amendment, the right to counsel stated in the Sixth Amendment, the protection against self-incrimination in the Fifth Amendment, and the right to free speech in the First Amendment. As I noted last week, a minority of rural voters in some states controlled the legislature through clever districting rules that magnified their representation and interests in the state legislature.

As the court has applied combinations of textualist and originalist interpretation, it has satisfied the wishes of the coalition of social conservatives, business interests and libertarians. Its Dobbs decision overruled the 50-year-old precedent set by Roe v. Wade, pleasing social conservatives. It overruled previous precedent set by the Bakke decision in 1978 that established affirmative action, pleasing business interests and libertarians. In 2008, its Heller decision established an individual right to own a gun, satisfying libertarians. It 2010 Citizens United decision overrules McCain-Feingold limits on corporate political contributions, giving business interests a greater opportunity to influence policy. Social conservatives are hoping that the court’s next term will overturn a right to same sex marriage established by the 2015 Obergefell decision.

Next week I will look at the conflicting priorities in textualist/originalist analysis and how its methodology differs from the more traditional analysis that focuses on the purpose of a law.

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Photo by Jim Strasma on Unsplash

Keywords: civil rights, environmentalism, amendments, Bill of Rights, Supreme Court, textualism, originalism

Epstein, Richard Allen. (2014). The classical liberal constitution: The uncertain quest for limited government. Harvard University Press.

Eyer, K. R. (2022). Disentangling textualism and originalism. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.4090893

Klarman, M. J. (2016). The Framers’ Coup: The Making of the United States Constitution. Oxford University Press.

Kraft, Michael E. 2022. Environmental Policy and Politics. New York: Routledge, Taylor & Francis Group.

Smith, Kimberly. 2022. “Environmental Policy In the Courts.” In Environmental Policy: New Directions for the Twenty-First Century, eds. Norman J. Vig, Michael E. Kraft, and Barry George Rabe. Thousand Oaks, CA: SAGE. essay, 137–54.

Alliances of Reasoning

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July 14, 2024

by Stephen Stofka

This week’s letter is about expectations and alliances of judicial reasoning and power. I will begin with some background on the judiciary, then follow up next week with a closer look at the rationales that various schools of judicial reasoning employ to reach their desired conclusion.

The legislature has 535 individual opinions of what is fair and just, as many interpretations of statutory and Constitutional text, and many prescriptions of what should be done to address a problem. Party leaders must collapse those many dimensions into a singularity, a sheet of paper that becomes law. As laws emerge from the halls of Congress, they become a multi-faceted work of collaborative reasoning. Businesses hire lawyers to reinterpret a piece of legislation in their favor, or to defend against regulatory action. The executive agency responsible for administering or enforcing the law has its own opinions of what the law says and how it should be executed. Judges in federal district courts weigh in with their opinions as they rule on cases and controversies brought before them.

Those opinions may be challenged in federal appellate courts then submitted to the Supreme Court asking them to take the case for review, a petition  called a “writ of certiorari.” Of the many cases submitted, the Court accepts only a small number – 62 in the 2023-24 session, according to Ballotpedia. Lawyers for the plaintiff and respondent argue their opinions to the Court, which reviews those arguments as well as amicus briefs submitted by advocate groups on either side of an issue. Again, many opinions collapse into a judgment won by a majority of the Court’s justices. In some cases, they simply refer the case back to a lower court with a clarifying interpretation of a legal area that the lower court should include in its consideration of the case.

The Constitution contains three articles that establish the Legislature, Executive and Judiciary. Article 3 authorizing the Judiciary is only 373 words, less than the word count required of a fourth-grade essay. Article 2 establishing the Executive branch is three times longer. Article 1 instituted the Legislative branch and is almost eight times as long. The principle of judicial review, that the courts can decide whether portions of laws passed by the legislature conflict with the Constitution, is not cited in Article 3. How did the Judiciary assume that plenary power?

The ruling in an 1803 case titled Marbury v. Madison decided that Marbury, the plaintiff, did not have standing to sue Madison, the Secretary of State under Thomas Jefferson. The decision was less noteworthy than the reasoning supporting the decision. The Court, headed by Chief Justice John Marshall, ruled that a portion of the Judicial Act passed in 1789 conflicted with Article 3, Section 2 of the Constitution. In that decision, Marshall assumed the right of the Court to have the final word on the meaning of statute and Constitutional text. A strict textualist interpretation of the Constitution would argue that the Marshall court had found a clever way to amend the Constitution. In recent decades textualist interpretations of the law have gained popularity among conservative justices. This branch of analysis emerged as a reaction to the purpose-oriented jurisprudence typical of the Court’s opinions in the sixties and seventies.

After WW2, voters gave Democrats an average 81 seat advantage in the House (Kraft & Furlong, 2021, p. 345), an effective mandate. In the current House, Republicans have only a 7-seat advantage. Many House members were World War 2 veterans, determined that the sacrifice of their military brothers in the fight for freedom would not be subjugated to racial practices that suppressed the freedoms of Black people, including those soldiers who had fought in the war. In 1962, Rachel Carson’s book Silent Spring focused popular attention on the sewage and dangerous chemicals that contaminated the nation’s air and water. As veterans gained seniority in Congress, they were able to pass civil and environmental reforms. In a surge of anti-Republican sentiment following the Watergate scandal, voters in the 1976 election handed Democrats a 150-seat advantage in the House.

A Constitution should thwart the human inclination to shape laws to suit to one’s advantage. The Supreme Court, headed by Chief Justice Earl Warren, established, or re-established depending on one’s perspective, several Constitutional principles of equality that upset relationships of power at the state and local levels. Shortly after President Eisenhower appointed Warren to head the Court, it issued its Brown v. Board of Education decision that established the principle that segregated schools in southern states were not equal. George Wallace, the Governor of Alabama, defied federal efforts to desegregate the state’s schools. In his campaign for President a decade later, he rallied his followers with the cry “segregation today…segregation tomorrow…segregation forever.”

The Court’s reliance on the equal protections of the 14th Amendment provided the rationale for other reforms, including Reynolds v. Sims (164), the “one person, one vote” decision. In several states, a dwindling population of rural voters maintained control of the state legislature through imaginative schemes. In Kentucky, districts were apportioned according to the mileage of the roads in the county, not the number of voters. In Tennessee, the legislature had not changed district apportionment since 1901, a move that disadvantaged the growing urban population of that state. In Vermont, 49 people in one district had equal representation with 33,000 in another state district. Other individual protections included the Miranda warning upon arrest, the protection from search and seizure by state and local officials without a warrant,  and the freedom to buy contraceptives in the Griswold ruling.

Some considered these rulings an intrusion on state and local autonomy and antithetical to the conservative principle of limited government. In the final year of the Warren Court and the close of the 1960s decade, Nixon encouraged a “silent majority” of traditionalists to reject the reforms and societal upheavals of the past decade. Nixon sought to wake the sense of grievance in a coalition of conservative minorities. In 1973, a volatile combination of events – the Watergate hearings, an oil embargo touched off by America’s role in the Arab-Israeli war, an 8.8% inflation rate, and the Court’s Roe v Wade decision – stirred up a backlash of traditionalist fervor that would gain momentum over the next two decades. Next week I will examine those alliances of power.

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Photo by Wesley Tingey on Unsplash

Keywords: silent majority, Watergate, Roe v. Wade, segregation, Supreme Court

Kraft, Michael E., and Scott R. Furlong. 2021. Public Policy: Politics, Analysis, and Alternatives. Thousand Oaks, CA: CQ Press.

Alliances in Political Parties

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July 7, 2024

by Stephen Stofka

This week’s letter continues my look at expectations and alliances, focusing on several junior elected Representatives as foot soldiers in an ideological and egotistical battle for political control. Congressional candidates who successfully challenge an incumbent in their own party attract the most attention. Running for office requires as much perspiration as aspiration and upsetting an incumbent requires both in large doses. Challengers are often funded by special interest or advocacy groups outside a district who are more concerned with defeating an incumbent than in promoting a new agenda. Seniority is power in Washington. A newly elected Congressperson with no seniority has less influence and bargaining power. They must work harder to help their constituents with problems in the Washington bureaucracy.

A newly elected Representative must learn to understand and navigate a complex web of seniority rights, relationships and personalities within the party. In Washington, the party leaders manage their party’s representatives as political assets in a game to control policymaking and promote their own power. Leaders use committee assignments as tools of control and inducement. Each Representative has a distinct style and demeanor that appeals to some groups of voters more than others. Party leaders hope to use that to broaden the party’s appeal.

Every three to four years, the Pew Research Center produces a typology of nine voting groups (PDF) in this country. These include Committed Conservatives and Faith and Flag Conservatives on the political right, and Democratic Mainstays and Progressive Left on the other side of the aisle.
Establishing a sympathetic tie with one or more of these groups helps each Representative meet fundraising goals set by the party. The report highlights the divisions within each party as well as those between the parties.

Despite the divisions within each party, allegiance to party is stronger than it has been in 54 years, according to a Pew Research analysis of the 2020 election. Only six states have split representation in the Senate – one Republican and one Democrat Senator. In most states, voters choose their Senators and President from the same party. Ninety percent of voters chose the same party in 2016 and 2020, leaving just a small fraction of uncommitted voters that each party hopes to woo.

Strong party allegiance makes it difficult for a Senator to compromise with their colleagues across the aisle. Special interest groups can fund a challenger, portraying a Senator’s compromise to reach consensus on legislation as a cop-out, a betrayal of principles. Our Constitution emerged as the result of many fractious debates. The convention was closed to public view to allow bargaining by the delegates without them having to worry about protecting their reputations during those debates. Secrecy certainly comes with caveats, but bargains are best brokered in back rooms, out of public view.

In each party the senior members do much of the bargaining while the junior members are expected to rally sentiment and bring in their allotted share of contributions from special interest groups and top donors. Representatives Lauren Boebert and Marjorie Taylor Greene rode MAGA sentiment to win Republican primaries in 2020. Greene represents Georgia’s 14th district, rated a strongly Republican R+22 district in the Cook Partisan Voting Index. Like Trump, Greene is a rule breaker, tossing aside customs of decent behavior for a Representative. Examples include using personal insults in a committee hearing, screaming at Democrats outside the Capitol building,  and attacking fellow Republican Lauren Boebert in a committee hearing. Her forceful and strident approach has been an effective strategy in her district.

In a district with a more moderate political voting record, an incumbent may have to temper their political posture. Like Greene, Lauren Boebert has portrayed herself as a disruptor and a combative Christian but her distinctively un-Christian behavior led many Republicans to abandon her in the 2022 election against a moderate Democrat. Her Colorado 3rd district is rated only R+7 in the Cook Partisan Voting Index. To avoid defeat in the upcoming 2024 election, Boebert moved to the 4th district which leans more heavily Republican. Both have low effectiveness scores but they bark loudly, and each party needs both barkers and bargainers.

In 2018, Alexandria Ocasio-Cortez, dubbed “AOC”, upset a long-time Democratic incumbent of New York’s 14th district (D+28). The heavily Democratic district allows her the latitude to further a progressive platform with less concern about a challenge from a moderate Democratic candidate. Just north of AOC’s district is Yonkers, a suburban county north of New York City. In 2020, Jamaal Bowman rode a progressive wave to unseat a 32-year incumbent Democrat. This 16th district is a strongly Democratic D+20 as ranked by the Cook Partisan Voting Index. Both AOC and Bowman have higher legislative effectiveness scores than Boebert and Greene, and are adept at attracting media attention without the histrionics that Boebert and Greene employ. Having sponsored two bills that became law, Bowman has the best record of all four yet lost his primary re-election this summer because of remarks he made about Israel’s conduct of the war against Hamas in Gaza.

National special interest groups as well as those in each Congressional district can make or break a candidate. They supply a candidate, or their challenger, with resources and funding, as well as a “banner” issue that can incentivize voter turnout in a primary election with typically low voter participation. In Bowman’s case, the Zionist lobbying group AIPAC led a historic fundraising campaign that supported Bowman’s challenger, according to Politico.

The political struggle is within each party as much as it is between the two parties. One party champions family and a political system called liberalism that prioritizes individual freedom, and advocates restraints on state power to protect those freedoms (O’Neil, 2021, p. 113). The other party promotes social democracy, a hybrid political-economic system founded on liberalist principles of private property and free markets but with an emphasis on community beyond the nuclear family and the well-being of individuals within community. Next week I will look at the role of the judiciary in this ideological struggle.

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Photo by Kelly Sikkema on Unsplash

Keywords: political-economic system, legislative effectiveness, special interests, primary election, political typology

O’Neil, Patrick H. 2021. Essentials of Comparative Politics. New York, NY: W.W. Norton & Company.

Legislative Effectiveness Scores: For each legislator, the Center for Effective Lawmaking produces an effectiveness score that includes the introduction of legislation, whether a bill made it through committee, was moved to the general chamber for a floor vote and whether the bill became law. A legislator’s score is compared to a benchmark score based on whether the party was in the majority or minority. Party leaders typically have scores in a range of 2 to 8.

 In the House session ending in January 2023, Lauren Boebert had an effectiveness score of .292. Marjorie Taylor Greene has a score of .117. AOC had a score of .739 and Bowman was .801.