Category Archives: Academic Papers

What Is Public? A Clash of Legal and Policy Paradigms

Cullen Merritt, Assistant Professor, SPEA, IUPUI

Julia Carboni, Associate Professor, Syracuse University

Deana Malatesta, Associate Professor, SPEA Bloomington

Sheila Suess Kennedy, Professor, SPEA, IUPUI

abstract

Deciding whether to advance public policy goals through government’s own employees or a third-party surrogate can be a complex undertaking largely because legal and policy actors will ask two very different questions: lawyers will ask “did government or someone who can be considered a ‘state actor’ do this?” Policy analysts will ask “Who should do this, government or a private party or a third-party surrogate?” Notably absent from prior scholarship is consideration of how the concept of “public” has evolved in administrative and legal practice. We analyze the evolution of “public” as defined by the Executive branch in OMB Circular A-76 and the parallel evolution of the judiciary’s “public function” test in state action cases.  Comparison of the administrative and legal frameworks in this area offers important insights into the tension between the two.  Conceptual knowledge in this area is especially salient given the increasing reliance on contractors and private funders to perform what public administration scholars have long assumed to be exclusively public functions.

 

INTRODUCTION

Public administration scholars have long sought to develop the concept of “public” (e.g., Bozeman 1987; Moulton 2009; Perry and Rainey 1988; Rainey, Backoff, and Levine 1976). Past efforts have focused on legal ownership (i.e., government versus private), modes of governance, and sources of authority (e.g., government regulation) as ways to distinguish between public and private actors. More recent efforts attempt to reconcile the judiciary’s understanding of state action with public administration scholars’ conceptions of public (Malatesta & Carboni 2014). This task is complicated by the fact that legal and policy actors are asking two very different questions: lawyers will ask “did government or a ‘state actor’ do this?” Policy analysts will ask “Who should do this, government or a private party or a third-party surrogate?” Notably absent from prior scholarship is consideration of the differences between legal and policy concepts of “public” and how those concepts have developed over time.

We analyze the evolution of public as defined by the Executive branch in OMB Circular A-76, and the evolution of the judiciary’s application of the “public function” test for purposes of the state action doctrine. OMB Circular A-76, “Performance of Commercial Activities”, is a federal document that provides guidance to those charged with determining how government will deliver and oversee “commercial” activities; the emphasis is on enhancing productivity and efficiency.  The Circular also provides guidance on distinguishing between commercial activities and “inherently governmental functions” that should be performed by government employees because they are “so intimately related to the public interest as to mandate performance by government employees.”

Though the courts do not have a singular definition of “public,” a subset of state action doctrine cases focus on the discharge of what the Supreme Court designates as public functions.  The state action doctrine is a legal principle used by the courts to distinguish between public and private actors for the purpose of assessing constitutional compliance.  Courts must decide whether conduct at issue is attributable to the state, making defendants potentially accountable to constitutional restrictions that apply only to state actors.  The jurisprudence of state action lacks clarity and consistency, and has been the subject of considerable legal scholarship and debate (Barak-Erez 1994; Carboni and Malatesta, 2014), but that debate has occurred with little or no cross-fertilization with either the policy literature or varying Executive branch directives.

This paper contributes to the growing literature on public-private distinctions.  Our contribution is unique, however, in that it traces the parallel historical evolution of “inherently governmental functions” and “public functions” as defined in administrative and legal contexts, respectively. Public administration scholars should be aware of both concepts, recognize the differences between them, and understand the implications of those differences for policy implementation. This issue is especially salient given the increasing reliance on contractors and private funders to perform what public administration scholars have long assumed to be exclusively public functions (e.g., operation of jails, state parks, and delivery of certain social services). We end the paper with a discussion of the implications resulting from the tension between inherently governmental functions and public functions for public administrators, with special emphasis on challenges in the contracting environment.

INHERENTLY GOVERNMENTAL FUNCTIONS ACCORDING TO THE A-76 CIRCULAR

Inherently governmental functions are those activities that federal law and policy have required to be performed by government employees, rather than by contractors or other non-governmental actors.  Though public administration literature has addressed the definition of inherently governmental functions to a limited extent, it has neglected documentation of the gradual but significant changes in the federal definition over the years. Instead, the literature has focused upon issues of accountability (Gilmour and Jensen 1998; Kettl 1997), the ethical/moral nature of outsourcing (Verkuil 2007), outsourcing and discretion in implementation of inherently governmental functions (Rosenbloom and Piotrowski 2005), and methods of managing contracts for complex products and services that involve contractor discretion (Brown, Potoski and Van Slyke 2009).

The definition of an inherently governmental function was originally designed for the purpose of distinguishing between commercial functions, defined as those that could properly be outsourced to non-governmental employees, and functions that should continue to be performed by government’s own employees. Criteria for identifying inherently governmental tasks have undergone changes as public administration distinctions between what is public and what is private have evolved.  The resulting definitions are broad and vague, providing general parameters to assess whether a function should be considered inherently governmental or commercial.

Although the literature has not been focused upon the nature of inherently governmental functions, its treatment of those functions has evolved along with general trends in public administration research. Beginning with Wilson’s politics-administration dichotomy, traditional public administration has been concerned with issues of leadership and executive action in the public sector; the scholarship advocated a separation between politics and administration, improved efficiency in the public sector, and improved service production through better management (Wilson 1887).  Later work emphasized application of general management principles to the public sector in order to improve the efficiency and professionalism of public administration (Gulick, 1937, Urwick 1945). In the 1960s, public administration shifted from an emphasis upon rational actor models and began to consider the human aspects of decision making.  The New Public Administration that emerged during this period was largely a rejection of the traditional approach to public administration and, instead, prized social equity, citizenship, and the provision of services to citizens (Waldo 1968).  Beginning in the 1980s, scholars in the field embraced New Public Management, a model that advocated a return to general management theory and private sector approaches to service delivery.  Contracting out was seen as a way to cut red tape and make government more efficient (Osborne and Gaebler 1993).  More recently, there has been a shift back to consideration of democratic values, responsiveness to citizens, and effectiveness, and an emerging emphasis on governance by complex arrangements of actors rather than by public agencies (Bryson et al. 2014; Denhardt and Denhardt 2000; Stoker 2006).

Confounding administrators’ decisions about what may be properly contracted out are two interrelated definitions of inherently governmental functions in US federal law. Those definitions are detailed below.  Both begin with the same assumption: certain activities are the domain of government only, and others, considered commercial, can properly be outsourced. A detailed account of the changing understanding of “inherently governmental” from the executive branch perspective can be seen through examination of OMB Circular A-76 and policy letters meant to clarify and expand upon that Circular, namely the Federal Activities Inventory Reform (FAIR) Act of 1998.  The FAIR Act of 1998 defines an inherently governmental function as “a function so intimately related to the public interest as to require performance by Federal Government employees.”  The FAIR Act requires executive agency compliance with the longstanding OMB Circular A-76 approach to the definition of inherently governmental functions.  Its primary focus is on requiring executive agencies to use competitive contracting processes in order to produce the most efficient and cost effective result, particularly in areas where functions were previously discharged by government employees.  It also requires executive agencies to report on their commercial activities to both Congress and the public.

The FAIR Act does not specify an exhaustive list of functions that are to be considered inherently governmental; rather, it identifies inherently governmental functions as those that will “require either the exercise of discretion in applying Federal Government authority or the making of value judgments in making decisions for the Federal Government, including judgements relating to monetary transactions and entitlements.” (31 U.S.C, Section 501).  The Act recites that inherently governmental functions are those that: bind the United States federal government by contract, policy, or regulative activities; determine, protect, and advance US property and interests by military or diplomatic action or judicial proceedings; affect the life, liberty, or property of private individuals; control federal employees; or control federal property, including acquisition, use, or disposition. These broad parameters provide a framework for determining what is inherently governmental rather than specifying activities that must be considered inherently governmental.  This broad approach is consistent with the OMB Circular A-76 definition.

OMB Circular A-76, “Performance of Commercial Activities”, is a federal document intended to provide guidance on government delivery of activities deemed to be commercial. It is focused upon enhancing productivity and efficiency, and it offers guidance on making a determination of whether it will or will not be appropriate to rely on the commercial sector.  OMB Circular A-76 defines an inherently governmental function as “an activity that is so intimately related to the public interest as to mandate performance by government personnel.”  Notably, in A-76, inherently governmental functions are defined in contrast to commercial activities.  Like the FAIR Act, Circular A-76 does not provide a list identifying inherently governmental functions; it defines inherently governmental functions as those that require discretion in applying government authority or functions which require value judgments in making decisions on behalf of government, and leaves the task of specifying those functions to the agencies, requiring the creation of agency inventories: “An agency shall prepare two annual inventories that categorize all activities performed by government personnel as either commercial or inherently governmental.”

The Executive Branch’s definition of what should be considered inherently governmental has changed over time, as the following timeline illustrates.

1955                The Eisenhower Administration’s Bureau of the Budget (predecessor of OMB) establishes federal policy to obtain goods and services from the private sector.  This policy, Bulletin No. 55-4, was the first version of the Circular A-76 and states that the government would depend on the private sector for the performance of commercial activities.

1966                Bulletin 55-4 was developed into formal policy under the new name, Circular A-76, by the OMB. The document restated the policy and reiterated the principle that the government should not compete with its citizens.

1967                OMB Circular A-76 was revised under the Eisenhower Administration to provide formal guidelines for cost comparison procedures.

1970                Reorganization Plan No. 2 of 1970 and Executive Order 11541.

1979                Circular A-76 was revised to recognize that some functions must be performed by government personnel, but recognized that in other cases contractor performance may be cheaper and more effective. It considered whether an agency had a requirement to contract out non-inherently governmental functions.

1983                OMB A-76 was reissued to simplify the cost comparison process under the Reagan Administration.  Procedures were also set in place to reestablish the initial objective of the Eisenhower administration so that commercial activities previously performed by the government could be outsourced to private companies.

1990                Chief Financial Officers Act of 1990 (CFO Act) was signed by the George H.W. Bush Administration to improve financial management by calling for the development and reporting of cost information and systematic measurement of performance.

1992                Office of Federal Procurement Policy Letter 92-1.

1993                Government Performance and Results Act (GPRA) mandated performance measurement by Federal Agencies.

Statement of Federal Financial Accounting Concepts No. 1, “Objectives of Federal Financial Reporting”, stated that Federal financial reporting should provide useful information to assess the budget integrity, operating performance, stewardship, and control of the Federal Government.

1995                Federal Accounting Standards Advisory Board (FASAB) recommended standards which produce the Statement of Federal Financial Accounting Concepts No. 4.  Concept No. 4 provides standards for managerial cost accounting.

1996                Circular No. A-76 Revised Supplemental Handbook was produced, replacing the supplement issued with the 1983 Circular.  The handbook provided updated guidance and procedures for determining whether reoccurring activities should be contracted with commercial sources, kept in-house using Government facilities and personnel, or advanced through inter-service support agreements (ISSAs).  The revision added: (1) balance the interests of parties to make or buy cost comparisons, (2) provide a level playing field between public and private offerors, and (3) encourage competition and choice in management and performance of commercial activity.

1998                Federal Activities Inventory Reform (FAIR) Act of 1998 was introduced.  The FAIR Act required the head of each executive agency to submit a list of activities performed by federal government sources to the Director of OMB and Congress.  This helped prepare executive agencies to evaluate cost efficiencies using the A-76 strategy.

1999                OMB updated the Revised Supplemental Handbook.  Revisions outlined that the government can engage in inherently commercial activities if the function is critical to combat effectiveness, if mission effectiveness will suffer because of outsourcing, if a commercial source is not available or does not meet government requirements in a timely manner, if another Federal agency can provide the goods/services, if outsourcing would result in a higher cost to the government, or if items were inherently governmental in nature.

2001                Competitive sourcing through A-76 was identified as a major initiative by the George W. Bush Administration’s Presidential Management Agenda (this initiative was defined by debate/criticism over A-76 competitions; the private sector maintained that the public sector and its employees had the greater advantage under A-76). This included a goal of controlling 50% of the commercial activities operated by federal agencies completed via the competitive sourcing process.

2003                OMB issued the current version of A-76, superseding the prior Circular and any related guidance.  Revisions to OMB Circular A-76 made it friendlier to the federal worker by getting rid of presumption that all commercial activities in government belong in the private sector.  The goal was to get the best value for the citizen irrespective of who performs the work.  Revisions were intended to simplify, clarify, and standardize the execution of the A-76 process.

A significant amount of Circular A-76 competitions occurred between 2003 and 2008 in most Federal agencies.

2007                Public debate ensued over the Walter Reed Army Medical Center in Washington, DC in which living conditions and frustrations of soldiers were reported by the Washington Post.  Both administration and bureaucratic failures were concluded to be factors contributing to poor conditions.  The public debate led to the prohibition of the conduct of A-76 competitions at military medical facilities, which ultimately led to a moratorium on the conduct of A-76 competitions government-wide.  There was concern that some A-76 activities should be considered inherently governmental and should only be performed by federal employees in the DOD.

2008                Congress passed legislation that suspended ongoing public-private competitions for DOD (Section 325 of the National Defense Authorization Act [NDAA] for FY2008) until September 30, 2008.

2009                President Obama signed into law the FY2009 Omnibus Appropriations Act (Sections 212 and 737) which suspended all new, government-wide OMB Circular A-76 studies through FY2009. DOD can use only competitive sourcing to determine how to best accomplish work that is not currently performed by federal employees. The Omnibus Appropriations Act directs OMB to “clarify when governmental outsourcing of services is, and is not, appropriate, consistent with section 321 of the 2009 NDAA.”

2009                “Managing the Multi-Sector Workforce” Memorandum.  This memorandum “provides initial guidance to help agencies improve their management of the federal government’s multi-sector workforce” by requiring agencies to:

  • Adopt a framework for planning and managing the multi-sector workforce that is built on strong strategic human capital planning.
  • Conduct a pilot human capital analysis of at least one program, project, or activity, where the agency has concerns about the extent of reliance on contractors.
  • Use guidelines that facilitate consistent and sound application of statutory requirements when considering in-sourcing.

2010                Section 735 of Consolidated Appropriations Act FY2010 imposed a moratorium prohibiting certain federal agencies from initiating or announcing a new public-private competition under OMB Circular A-76 through Sept. 30, 2010.

Section 325 of the NDAA for FY2010 established a review and approval process from recommencing DOD private-public competitions.  Section 322 and 325 of NDAA FY2010 required GAO to assess DOD’s report on public-private competitions and its use of authority to extend the 24-month time limit on the conduct of A-76 competitions.

In Section 8117 of Department of Defense Appropriations Act of FY2010, Congress prohibited any spending of FY2010 funds to conduct public-private competitions under A-76.

2011                In Section 323 of Ike Skeleton National Defense Authorization Act for FY2011, Congress prohibited the Secretary of Defense from establishing quotas or goals for converting functions performed by DOD civilian employees to contractors unless based on research and analysis required by title 10 United States Code.

In the Consolidated Appropriations Act FY2011, federal agencies cannot initiate or announce new public-private competitions (Section 8103 of P.L. 112-10).

2011                Policy Letter 11-01, “Performance of Inherently Governmental and Critical Functions”, prohibited outsourcing “inherently governmental functions” and cautions against outsourcing functions “closely associated with inherently governmental.”

2012                Technical correction to Policy Letter 11-01 made “to clarify that the Policy Letter applies to both Civilian and Defense Executive Branch Departments and Agencies.”

In Section 733 of P.L. 112-74, The Consolidated Appropriations Act for FY2012 prohibited funds from being used to begin/announce a study of public-private competition.

Obama Administration FY2013 Budget Request sought to prohibit conduct of future public-private competitions under circular A-76.

2013                Prohibition is continued.

2015                Prohibition is continued.

THE STATE ACTION DOCTRINE AND THE DEFINITION OF PUBLIC FUNCTION

In the United States, the legal system draws a constitutionally significant distinction between the public sector, defined as government and its agencies and officials, and the private sector, including civil society, defined as the multitude of nongovernmental, voluntary communal and religious associations through which individuals may act and connect. That distinction is a crucial, if unarticulated, element of most U.S. policy decisions, because only government actors can violate the American Bill of Rights, which limits government actions but not private behaviors. Based upon this particular understanding of the relationship of public and private behaviors, the American Constitution does not grant affirmative rights; it limits the power of the state to infringe private ones. This is not the case in many other Western democratic states, where it is common to have a constitutional system that both restrains and empowers government, and where social entitlements frequently are embedded in the constitution.

As a result of the United States’ approach, sometimes called “negative liberty”, a transfer of authority to nongovernmental agents is more than merely a management problem, as it is in many other countries, because constraints on the use of governmental authority are fundamental to the United States’ political and constitutional order (Kennedy 2012). “The Bill of Rights restrains only government action, making it essential that citizens and public managers alike be able to identify when government has acted” (Kennedy 2012, 1). The growth of contracting arrangements has made that identification increasingly problematic, blurring the boundaries between private and public action and making it difficult in many situations to determine whether a particular action or decision can fairly be categorized as governmental (Kennedy 2012). The result, in the opinion of many scholars, has been a loss of essential governmental accountability and thus legitimacy (Brown 2008; Metzger 2003; Kennedy 2001; Gilmour and Jensen 1998).

In making a determination whether state action is present, the courts will consider a number of elements, including but not limited to whether the function in question has traditionally been performed exclusively by government. As the practice of contracting out has grown, courts have increasingly been faced with cases in which the presence of state action sufficient to impose legal liability is less than clear-cut; accordingly, the question of what constitutes a public function for purposes of constitutional jurisprudence has changed over time. The inconsistencies of those changes have prompted calls for clarity from lawyers and legal scholars alike.

Current Status of the Relationship between State Action and Public Function

The Supreme Court has not discarded the idea that some governmental activities are in fact inherently “public functions.” It has, however, over time changed its approach to defining what those activities are, and not in a coherent fashion. In 1992, Justice Scalia began his state action analysis in the case of Lebron v. National Railroad Passenger Corporation with an observation that “It is fair to say that our cases deciding when private action might be deemed that of the state have not been a model of consistency.”  It is hard to disagree, and subsequent jurisprudence has not remedied the problem.

In the early 1940s, “the Court first expanded the meaning of state action to include private actors performing a government function (Smith v. Allwright 1944) and private action in which the state is significantly involved” (Peretti 2010, 273).  Since Marsh v. Alabama in 1946, however, the Court has been wary of too expansive an application of the state action doctrine in public function cases (Wirth 2014).  The evolution of legal doctrine defining what the courts will consider to be a public function can be seen not only when the Court finds a particular defendant a state actor, but also when it declines to do so.  For example, despite the common assertion that state action will be found when government exercises its coercive power or has provided significant encouragement of the decision at issue, in Blum v. Yaretsky, the Supreme Court declined to find state action even though the private nursing home’s medical personnel were obeying specific government regulations.  The ruling in Blum v. Yaretsky, among other cases, highlights the reluctance of the courts to deem private parties state actors.  Today, courts will typically find state action under the public function test when three conditions are present: (1) the activities have traditionally been performed only by government; (2) the private actor’s undertaking of the activity substantially replaces the government’s traditional performance of the function; and (3) the private activity is substantially aided by the state.

The Evolution of Public Function Application in State Action Cases

In a number of rulings, the Supreme Court has found private actors’ performance of governmental functions sufficient to make these parties agents of the state.  Judicial decisions focused upon state action and public function have centered on the First, Eighth, Fourteenth, and Fifteenth Amendments to the United States Constitution although, theoretically, state action may be found when any constitutional provision is at issue.  The rather limited set of issues on which the Court has based its rulings in this area suggests that the Court is more likely to find state action when the liberty interest involves freedom of speech, cruel and unusual punishment, equal protection and due process, and the right to vote, as Table 1 illustrates.

Cases implicating civil rights, especially the right to vote, led to the birth of state action doctrine and the legal interpretation of public function.  In two foundational cases, the court held that conducting elections is “exclusively a state function and invalidated racial discrimination by non-governmental groups (political organizations or parties) who exercised effective control over the selection process of candidates in a primary or pre-primary process” (Hunter, Shannon, McCarthy 2013, 67).  In Smith v. Allwright (1944), the Democratic Party of Texas, a voluntary organization, was held to be a state actor when Smith, a black man, was denied the right to vote on the basis of his race.  Because the state of Texas governed the selection of party leaders at the county level, the practice of racial discrimination in elections was considered a violation of constitutional rights by the state.  In Terry v. Adams (1953), a private association denied a citizen the right to vote on the basis of race.  The Supreme Court upheld the precedent in Smith: if a private political party is authorized to influence the outcome of an election, which is a function of government, the private actor will be found to be an agent of the state subject to the Fifteenth Amendment.  Smith v. Allwright and Terry v. Adams established that most, albeit not all, election functions traditionally performed by government will be deemed to be public functions.

Court rulings grounded in the First and Fourteenth Amendments (and on two occasions the simultaneous violation of both) (Marsh v. Alabama 1946 and Amalgamated Food Employees v. Logan Valley Plaza 1968), further developed the state action doctrine following the early civil rights cases.  In multiple cases, court rulings extended the doctrine beyond government actions to encompass functions that the Court deemed “governmental in nature”.  In Marsh v. Alabama, a Jehovah’s Witness disseminated religious literature near a post office in Chickasaw, Alabama, a company town, without obtaining permission from the Gulf Shipping Corporation, the owner and operator of the town.  The question before the court was whether the State of Alabama violated Marsh’s constitutional rights under the First and Fourteenth amendments when she was arrested for distributing religious material.  In a 5-3 ruling, Justice Hugo Black emphasized that owners of privately held bridges, ferries, turnpikes, and the like may not operate them as exclusively private entities. Rather, because these facilities are built and operated primarily for the benefit of the public and are governmental in nature, they will be subject to state regulation and required to operate in a constitutionally appropriate manner. Even though Chickasaw, Alabama was a “company town”  owned and operated by a private corporation, the court emphasized the town’s numerous public attributes, including the fact that the town’s policeman was a deputy from the Mobile County Sheriff’s Department. In Evans v. Newton (1966), the Court built upon the precedent set in Marsh and held that prior governmental involvement in the operation of the public space compelled a finding of state action; the case revolved around the use and maintenance of a tract of land which had been willed to the City of Macon, Georgia in 1911, to be used as a park for white people only.

Freedom of speech was the central constitutional issue in Amalgamated Food Employees v. Logan Valley Plaza (1968).  The Court was faced with a case concerning a protest occurring at a shopping center that maintained common areas, including parking lots and driveways; the question was whether the premises were public or private for purposes of evaluating protestors’ Free Speech rights.  The Court concluded that individuals may peacefully protest based on their First Amendment rights, since the shopping center was the “functional equivalent” of the business district of a town.  Citing Marsh, the Court used the case to further clarify its application of the state action doctrine and the degree to which it will consider common areas sufficiently public to justify constitutional analysis.  The more an owner opens private property to public use, the more the owner’s private rights become limited by the rights of the individuals who use it (Amalgamated Food Employees v. Logan Valley Plaza).  Legal scholars consider the precedent set in Amalgamate Food Employees v. Logan Valley Plaza the high-water mark of the public function theory (Huss & Simmons, 1976); the difficulty of balancing the competing public and private rights involved becomes apparent in subsequent litigation. The Court would revisit the issue four years later in Lloyd Corp. v. Tanner (1972), and would reverse course in Hudgens v. NLRB (1976).

The court held in Lloyd Corp v. Tanner (1972) and Hudgens v. NLRB (1976) that exclusively private property is not public property just because the public is invited to use the property for its intended purpose. In addition, due process guarantees will not apply to a plaintiff in situations where the state merely acquiesces to private actions (Flagg Bros v. Brooks 1974); when an action is not traditionally or exclusively reserved to the state (Jackson v. Metro Edison 1974); and when no symbiotic relationship exists between the state and private party (NCAA v. Tarkanian 1988; Baker v. Kohn 1982; San Francisco Arts & Athletics v. US Olympic Commission 1987).

In West v. Atkins (1988), a Fifth Amendment case in which a private contractor provided health care services to prisoners for a state hospital, the contractor was operating under state authority and was found to be a state actor performing a public function. In Edmonson v. Leesville (1991), the Court held that the right to trial by a fair and impartial jury is a guarantee issued by government, and the fact that private litigants dictated race-based exclusions during jury selection process would not deprive the litigant of a that constitutional guarantee.  When private actors participate in the selection of jurors, they serve a vital function within the government and are agents acting under its authority.

Careful consideration of the issue of state action should be a critical component of decisions by government agencies to contract out. Both the government and the contractor need to understand whether and under what circumstances the contractor’s actions will be legally attributable to the government, and where the ultimate liability will lie in the event of a successful lawsuit by a third party.

 

[Table 1 about here]

DISCUSSION AND CONCLUSIONS

“The development of a coherent and comprehensive understanding of state action begins with a multi-issue inquiry (ideally by all branches at all levels of government) into the nature of every transfer of government authority.” (Gilmour and Jensen 1998, 25).  Inquiry is necessary at three points—when the decision to delegate authority is made, during administrative oversight, and during judicial review. OMB Circular A-76 is concerned with the first point, the initial decision to contract out. It outlines a broad set of criteria to determine whether or not a function is appropriate for outsourcing or should be discharged by government through its own employees.  A-76 approaches that inquiry based on issues involving discretion and authority, rather than history.   In contrast, the courts’ “public function” test is applied to a situation in which that initial determination has already been made. Courts must determine whether the private entity employed by government was functioning as a state actor, justifying a finding of state action for the purpose of settling claims arising out of action that has already occurred.  In the process of assessing the public function test in order to determine the presence of state action, the courts look at several factors, including whether the activity in question has traditionally been performed exclusively by government.

These two approaches, the administrative and the legal, can complement each other, with A-76 providing guidance to public administrators as to whether or not something is a government function – even if it has been contracted out (state action can be attributable to private actors). Even if the Executive Branch approach to defining public function differs from the more limited instances in which the courts will find state action, recognizing the circumstances within which the courts will assess liability will inform contract negotiations and drafting, and avoid inadvertent assumptions of liability.  The courts have established a high bar for determining which functions are “public functions” and for determining when a contractor will be found to be a “state actor.” Understanding this jurisprudence may help both government and those with whom they contract to insulate private actors from constitutional claims that would apply if government performed the same functions (Buchanan et al. 1997), without inadvertently depriving citizens of constitutional protection.

Furthermore, encouraging those acting on behalf of the Executive Branch to familiarize themselves with what the courts have held in order to rationalize their respective definitions of public function is also important; when government is engaging in outsourcing, those responsible need to understand how their administrative decisions will be reviewed and interpreted in the event of litigation.  What makes this particular inquiry difficult, and may account for what seems to be an existing disconnect between the Executive Branch definition and the legal doctrine, is the lack of specificity of the former and the lack of clarity of the latter. The legal scholarship critiquing the Court’s state action jurisprudence and pointing to the practical problems raised by the incoherence of that jurisprudence is copious. When we counsel public administrators to follow the guidance of the courts, we assume that the courts are actually offering that guidance. When the various tests applied by different Circuit Courts differ from each other and from cases decided by the Supreme Court, guidance is hard to come by.

As Brown’s (2008) law review article concluded, “Balancing the United States Supreme Court’s tests with individual circuits’ applications of these tests, all while carefully excluding inapplicable precedents” (581) is a difficult analytical task facing courts in modern state action cases.

Losing the court’s favorability in recent decades, due in part to the judiciary’s utter confusion with this area of the law, modern courts are hesitant to authoritatively find state action. The state action doctrine is slowly descending into utter confusion, where private parties remain unaware of what conduct subjects them to Constitutional restrictions, and courts are unclear as to the appropriate state action standard. The time has come for the United States Supreme Court to declutter the state action doctrine by combining tests, shedding unnecessary terminology, demystifying the state action doctrine, and giving the lower courts a tangible standard with which to work (581)

The lower courts would not be the only beneficiaries of such clarification. Public administrators and private contractors could base contracting decisions on accessible and consistent guidelines, and (in an ideal world) citizens could be confident that protection of their constitutional liberties was an important and conscious element of governmental contracting decisions.

Clearly, the advancement of public policy objectives is “not the exclusive province of government, nor is government the only institution having public obligations, [though clearly] government has a special role as a guarantor of public value” (Jorgensen and Bozeman 2007, 373-374).  As a guarantor of inherently governmental functions and public functions and primary contributor to the public value that emerges from these activities, government will benefit from resolving the tension between administrative and legal conceptions of public.

 

Cases cited

Smith v. Allwright, 321 U.S. 649 (1944).

Marsh v. State of Alabama, 326 U.S. 501 (1946).

Terry v. Adams, 345 U.S. 461 (1953).

Evans v. Newton, 382 U.S. 296 (1966).

Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978).

Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).

Blum v. Yaretsky, 457 U.S. 991 (1982).

Rendell-Baker v. Kohn, 457 U.S. 830 (1982).

San Francisco Arts & Athletics v. United States Olympic Committee, 483 U.S. 522 (1987).

Hudgens v. NLRB, 424 U.S. 507 (1766.)

National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179 (1988).

 

West v. Atkins, 487 U.S. 42 (1988).

Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).

Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968)

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)

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Buchanan, G. Sidney, Charles L. Black Jr, William J. Novak, and Gillian E. Metzger. 1997. State Action and the Public/Private Distinction. HOUS. L. REV. 1367:1248

Denhardt, Robert B., and Janet Vinzant Denhardt. 2000. The new public service: Serving rather than steering. Public administration review 60: 549-559.

Gilmour, Robert S., and Laura S. Jensen. 1998. Reinventing government accountability: public functions, privatization, and the meaning of “state action”. Public Administration Review 247-258.

 

Gulick, Luther. 1937. Notes on the theory of organization, In Luther Gulick & Lyndall Urwick  (Eds.),  Papers on the science of administration, 3-13. New York: Institute of Public Administration.

Hunter Jr, Richard J., John H. Shannon, and Laurence McCarthy. 2013. Fairness, Due Process and NCAA: Time to Dismiss the Fiction of the NCAA as a Private Actor. J. Pol. & L. 6:63.

Huss, Richard B. and Richard J. Simmons. 1976. Hudgens v. NLRB: Protection of Shopping Center Picketing under the Constitution or NLRA? , Industrial Relations Law Journal (1976): 632-655.

Jørgensen, Torben Beck, and Barry Bozeman. 2007. Public values: An inventory. Administration & Society 39:354-381.

Kennedy, Sheila S. 2001. Privatizing education: The politics of vouchers. Phi Delta Kappan, 82:450-456.

Kettl, Donald F. 1997. The global revolution in public management: Driving themes, missing links. Journal of Policy Analysis and management 446-462.

Malatesta, Deanna, and Julia L. Carboni. 2015. The public–private distinction: Insights for public administration from the state action doctrine. Public Administration Review 75:63-74.

Metzger, Gillian E. 2003. Privatization as delegation. Columbia Law Review 1367-1502.

Moulton, Stephanie. 2009. Putting together the publicness puzzle: A framework for realized publicness.” Public Administration Review 69:889-900.

Osborne, David and Ted Gaebler. 1993. Reinventing Government; How the Entrepreneurial Spirit is Transforming the Public Sector. New York: Plue.

Peretti, Terri. 2010. Constructing the State Action Doctrine, 1940–1990. Law & Social Inquiry, 35:273-310.

Perry, James L., and Hal G. Rainey 1988. The public-private distinction in organization theory: A critique and research strategy. Academy of management review 13:182-201.

Rainey, Hal G., Robert W. Backoff, and Charles H. Levine. 1976. Comparing public and private organizations. Public administration review 36:233-244.

Rosenbloom, David H., and Suzanne J. Piotrowski. 2005. Outsourcing the constitution and administrative law norms. The American Review of Public Administration 35:103-121.

Stoker, Gerry. 2006. Public value management: a new narrative for networked governance? The American review of public administration 36:41-57

Sullivan, Harold J. 1987. Privatization of public services: A growing threat to constitutional rights. Public Administration Review 461-467.

Urwick, Lyndall. 1945. The Elements of Administration. New York: Harper and Brothers.

Verkuil, Paul R. 2007. Outsourcing sovereignty: Why privatization of government functions threatens democracy and what we can do about it. New York: Cambridge University Press.

Waldo, Dwight. 1948. The Administrative State. New York: The Ronald Press Company.

 

Wilson, Woodrow. 1887. The study of administration. Political science quarterly 2:197-222.

Wirth, Stephen K. 2013. State Action, Government Speech, and the Narrowing Spectrum of Private, Protected Speech. Cornell L. Rev., 99, 485.


 

Table 1

 

Supreme Court Rulings on State Action Cases involving Public Functions

 

Year Case Finding of state action? Public Function
1944 Smith v. Allwright yes elections
1946 Marsh v. State of Alabama yes public space (in company-owned town)
1953 Terry v. Adams yes elections
1966 Evans v. Newton yes public space (desegregation of park)
1968 Amalgated Food Employees v. Logan Valley Plaza yes public space (trespass on private property)
1972 Lloyd Corp. v. Tanner no public space (trespass on private property)
1974 Flagg Bros., Inc. v. Brooks no public space (trespass on private property)
1974 Jackson v. Metropolitan Edison Co. no utility
1976 Hudgens v. NLRB no public space (trespass on private property)
1982 Blum v. Yaretsky no state subsidized healthcare
1982 Rendell-Baker v. Kohn no education
1987 San Francisco Arts & Athletics v. United States Olympic Committee no national interests
1988 National Collegiate Athletic Association v. Tarkanian no due process
1988 West v. Atkins yes state subsidized healthcare
1991 Edmonson v. Leesville Concrete Co. yes civil trial jury selection
Comments

Thirty Years of Public Management Scholarship: Plenty of “How” Not Enough “Why”

Reflecting upon thirty years of scholarship in any field is a daunting assignment. When the field is public management, there is much to applaud: scholars have made important contributions to our understanding of everything from bureaucratic motivation, public budgeting processes, the promises and pitfalls of contracting-out, and identification of the skills needed to be an effective public manager, to the scientific arcana of sustainability and the respective responsibilities of public administrators and elected officials. These and other insights into what we might call the “nuts and bolts” of managing government operations are valuable and the copious research that has produced them has been both instructive and worthwhile.

That said, as I have surveyed the public management literature over these years, I have become increasingly convinced that the profession would benefit greatly from a much more sustained emphasis upon the history and philosophy of the constitutional choices made by those who framed America’s original approach to governance. I remain persuaded of the validity of the following observation from a 2003 review of several public administration textbooks:

Before there was public management, there was political theory: what should government do? What actions by the state are to be considered legitimate? What is justice? What is public virtue? As Thomas Barth reminded us in this journal last October (Barth, Thomas J. “Reflections on Building an MPA Program: Faculty Discussions Worth Having,” Journal of Public Affairs Education, Vol.8 #4), those of us who teach public management too frequently neglect these seminal questions for the necessary but inevitably more mundane skills of the profession—budgeting, planning, human resources management, policy analysis. But these practical subjects did not emerge from a void; they are inextricably bound up with our constitutional system, and that system in turn is the outgrowth of great philosophical debates about the proper ordering of human communities. It can be extremely rewarding for students to visit those debates. (One would love to say “revisit” but that would be inaccurate; virtually none of them have any familiarity with this intellectual history.) (Kennedy 2003)

In 1986, well before the beginning of the thirty-year survey of literature with which this journal issue is concerned, John Rohr published his seminal To Run a Constitution, in which he emphasized the link between public management ethics and constitutionalism. He revisited that connection in 1998, in Public Service, Public Ethics and Constitutional Practice. Rohr has long argued that the central theme of public management, and the most important challenge facing civil servants, is how to ensure the responsible exercise of administrative discretion. That “responsible exercise” requires familiarity with the constitution that administrators take an oath to uphold, and an understanding of the philosophical underpinnings and constitutional context of our particular approach to governance. Rohr noted the tensions between the culture of the administrative state and that of constitutionalism, and in language pertinent to both the opening quotation and the focus of this journal issue, noted that the “culture of the administrative state is managerial. It stresses achievement and performance; its watchwords are efficiency and effectiveness. The latter is cautious and legalistic. It limits government, checks tyranny, and provides the blessings of liberty.” (Rohr, p.38)

It is inarguable that the literature of the past thirty years has been concerned primarily with efficiency and effectiveness; there has been much less research into the ways in which those constitutional “limitations on government” and “checks on tyranny” affect the management of public agencies. Among other things, the search for cost-effectiveness and efficiency has prompted substantial growth in comparative research; scholars increasingly investigate public management practices in other countries in order to identify useful alternative approaches to common public administration issues. There is no doubt that management regimes benefit greatly from research on such common challenges as waste disposal, public transportation, pollution reduction and the use of new communication technologies, among other tasks; however, no matter how useful and transferable such practical insights are, we must not lose sight of the fact that the rules and underlying assumptions governing management of public affairs will inevitably be particularistic. Public officials must manage the public’s business as that business is defined by a particular society at a particular time. In the United States, that imperative requires a more than passing familiarity with constitutional assumptions about the roles, rights and respective responsibilities of government and its citizens.

Constitutions are the original declarations of public policy. They embody a society’s fundamental philosophical assumptions about law, legitimacy and the proper exercise of government power. Constitutions and the legal and administrative systems they establish dictate the ways in which we frame public problems and they effectively foreclose exploration of certain policies that may be employed in other countries or at other times. To cite some rather obvious examples, the United States Constitution does not permit American officials to impose martial law when burglary rates get too high, or to censor music lyrics when some citizens find them too suggestive. It does not permit government to reduce welfare rolls by refusing to feed Hispanic children, or to combat civic unrest by criminalizing political demonstrations or marches. Understanding the constitutional bars to these and other governmental measures, and the reasons for them, is critically important to the proper discharge of a public manager’s duties.

Constitutional provisions not only circumscribe and prescribe the arena within which public policy debates may legitimately occur, they also provide us with a common language, something that is required for meaningful democratic dialogue. Public managers don’t need to agree with every choice made by the nation’s founders, but they do need to understand what those choices were, why they were made, and why they matter today. Without that essential background, many public management issues cannot be properly framed or the political passions they sometimes arouse clearly understood; they will tend to be viewed as isolated and unconnected problems to be addressed by the appropriate technocrats. With constitutional literacy comes recognition that certain underlying principles will be as applicable to discussions of welfare reform, tax policy and land use as they are to school choice or public health or gay rights.

A case in point: An issue that has generated a great deal of public management research over the past thirty years is the issue of privatization, more accurately described as “contracting out.” The practice of providing public services through third-party surrogates, both non-profit and for-profit, has grown considerably over the past three decades. Public administration scholars have studied the practical and fiscal challenges of the practice (Cooper, 2002; Greene, 2002; Kettl, 2000; Sclar, 2000; Brudney, Hebert and Wright, 1999; Starr, 1987) ; nonprofit scholars have addressed concerns about sectoral blurring and its effect on nonprofit and voluntary organizations[Milward, 1994; Gronbjerg, 1993; Smith and Lipsky, 1993; Milward and Provan, 1993; Milward, Provan and Else, 1993]; and both have examined the mechanics and challenges of what has been called the “contract state.” (Hall and Kennedy, 2008; Marvel and Marvel, 2007; Light, 2006; McGuire and Agranoff, 2003; Perry and Wise, 1990) The scholarship examining contracting is copious and growing, and over the years, as researchers have explored the civic and monetary costs of these arrangements, those analyses have become more fine-grained and illuminating. Even today, however, despite significant academic interest in most aspects of the practice, there is a paucity of literature examining the sometimes troubling effects of these arrangements on constitutional accountability, and a limited recognition of the different constitutional implications of different public-private relationships.

The terms “public affairs” and “public management” reflect the existence of both public and private sectors, and different constitutional cultures define those spheres differently. In the United States, we have drawn a distinction between the public sector, by which we mean government and its agencies, and civil society, by which we mean the multitude of nongovernmental, voluntary communal and religious associations through which individuals may act and connect. That distinction is a critical element of constitutional analysis. It is extremely dispiriting to encounter public officials who are simply unaware of the concept of state action, who have never been taught that the constraints of the Bill of Rights limit government only, and that as a consequence, we must ask different questions when we are proposing government interventions than when we are contemplating other kinds of collective social action.

Contracting out can make it difficult to distinguish private from public activity, a distinction critical to constitutional analysis. On the one hand, if a government agency engages in traditional procurement activities, if, for example, it buys computers or automobiles or other products from a private company, the vendor of those goods will not and should not be considered by virtue of that transaction to be a part of the public sector. But what is the result when a city or state engages a for-profit company or nonprofit organization to deliver services that are government’s responsibility and that were previously delivered by government employees? During the discharge of those contractual duties, can the private-sector company or non-profit organization legally engage in practices that would be unconstitutional if done by government?  The case law to date suggests that the answer to this question is sometimes yes, and that is a very troubling conclusion. (Kennedy, 2001) Even more troubling is a lack of clear guidance from the courts to public managers that would assist them in distinguishing between situations in which a non-governmental partner will be held constitutionally responsible and those in which it won’t. (In Lebron v. National Railway Passenger Corporation, a 1995 case, Justice Scalia memorably conceded that “It is fair to say that our cases deciding when private action might be deemed that of the state have not been a model of consistency.”)

Nevertheless, though the public management literature dealing with normative constitutional issues over the past thirty years is thin, it is not non-existent. This essay previously referenced John Rohr’s foundational contributions to the literature in To Run a Constitution. His later Public Service, Ethics & Constitutional Practice brought together a series of lectures addressing the same concerns, given over a period of twenty-plus years. Publication of the book, according to Rohr, had three goals: to remind public servants of the nobility of their calling; to stress the importance of the constitutional dimension of their work; and to encourage public managers to make greater use of constitutional language to describe their everyday activities. In connection with the third goal, he reiterated his belief that “one of the most fundamental problems with the public management movement” is its failure to emphasize that the job of the public manager is to implement the Constitution.

David Rosenbloom has been one of the most important and consistent scholars amplifying Rohr’s insistence upon the essential relationship between constitutional principles and the everyday decisions of public managers. (Rosenbloom 1971, 1983, 1987, 2002, 2003; Rosenbloom, Carroll and Carroll, 2000; Rosenbloom and Kravchuch, 2005; Rosenbloom and McCurdy, 2007) In 2000, together with James and Jonathan Carroll, Rosenbloom published Constitutional Competence for Public Managers, intended as a textbook for those teaching public administration. The book provided a highly readable combination of public administration theory and constitutional case law, including several issues raised by contracting and the Reinventing Government movement. The authors explained the book’s objective in their introductory chapter as an effort to provide students and practitioners of public management with knowledge needed to make them “constitutionally competent.”

Given the number of articles and research studies that have been devoted to the New Public Management (NPM) over the past three decades, it is worth quoting a particularly cogent analysis from Chapter Six of Constitutional Competence for Public Managers, addressing the conflicting philosophies of NPM and the Constitution. Noting the NPM emphasis on employee empowerment, the authors began by quoting Al Gore:

“…people—in government or out—are, for the most part, neither crooked nor stupid. Most people want to do the right thing, so long as the right thing makes sense. Perhaps the most important thing about the reinvention initiative, and its regulatory reform work in particular, is that it is based on a new assumption: that people are honest and that if you tell people what needs to be done, and let them get on with doing it, the chances are it will be done better—and more cheaply—than if you tell them how.” (127)

As the authors observe, this statement may or may not be an accurate view of human nature, but it is inconsistent with both the “underlying premises of the Constitution and the received political culture in the United States” (127)

Furthermore, they point out that one person’s prudent precautions against corruption and overreaching are the next person’s red tape. Deregulation and employee empowerment will inevitably create tensions with provisions of a constitutional structure designed to encourage accountability and discourage administrative capriciousness—especially the separation of powers and due process.

The importance of Separation of Powers to the field of public management was also the subject of a book written in 1995 by Michael Spicer, The Founders, the Constitution and Public Administration. In that book, Spicer made a strong case for the importance of constitutional values to public administration. (Indeed, he began the book with the assertion that public management that is not rooted in the Constitution lacks legitimacy, a view that both Rohr and Rosenbloom would almost certainly endorse.) “The purpose of this book,” Spicer says in his introduction “is to examine the worldviews underlying public administration and the Constitution. It is also to see how our vision of public administration might be modified so as to render it more compatible with the worldview of the Founders.”(10)

Spicer argues that public administration, with its early roots in scientific management, has focused almost exclusively on such specific areas as policy analysis, management science, and systems analysis in public administration, and more recently on the public management uses of computers, management information systems and the various techniques for reinventing or streamlining government. The Constitution, in contrast, is concerned with broader philosophical questions about the proper use and reach of government power. Spicer cites Madison’s abiding concern over the abuse of state power by officials responding to popular passions, as well as his belief in the importance of checks and balances, and his conviction that “ambition must be made to counter ambition”(36). He quotes from Hamilton to underscore the Founders’ conviction that it is better for government to do too little than too much, better to regret that good laws didn’t pass than to regret that bad laws did.

Spicer argues that because public administration has concentrated on the need to legitimize the administrative state, it has found itself at odds with a central Constitutional concern, the need to limit power. He suggests that for public administrators intent upon steering the ship of state, the Constitution is far too often seen as a problem to be circumvented, rather than a basis upon which to build legitimacy.

In the first decade of the 21st Century, there has been an uptick, however slight, in publications meant to underscore the importance of constitutional competence in public administration. In 2006, Anthony Bertelli and Laurence Lynn published Madison’s Managers: Public Administration and the Constitution, in which the authors challenged public management scholars and professionals to recognize the importance of constitutional foundations to the actual and perceived legitimacy of public administration; in the book, the authors explored the specific implications of that insight for managerial practices. Also in 2006, Bertelli and Lynn published an abbreviated version of their argument, titled “Public Management in the Shadow of the Constitution” in Administration and Society.

 In 2009, Robert Christensen emphasized the connection between public law and public management in an article published by Public Performance and Management Review titled “Running the Constitution: Framing Public Administration,” and in 2010, Stephanie Newbold provided an important overview of the (scant) literature and argued for renewed emphasis upon the constitutional roots of public management. Newbold’s article in Public Administration Review was titled “Toward a Constitutional School for American Public Administration,” and in it she made the case for the establishment of a “constitutional school,” which she defined as a “loose confederation of public administration scholars and practitioners” who would connect the U.S. Constitution with all aspects of American public administration theory and practice. In her introduction, Newbold cited David Rosenbloom (2002, 2003) for the proposition that the Constitution is “the normative base for our scholarship, and it demands that we reemphasize and reestablish a greater commitment to how the rule of law pervades public administrative management in its entirety.”

Newbold credited Michael Spicer and Larry Terry for the term “constitutional school,” which they coined in 1993 in a Public Administration Review forum on public administration and the Constitution. Terry believed that public administrators’ oath to uphold the Constitution should be seen as a “moral commitment” requiring fidelity to the values embodied in the nation’s charter. Newbold also cited Terry Cooper (1991, 1994; Cooper and Wright 1992), Rosemary O’Leary (O’Leary and Wise 1991, 2003) John Rohr (1986, 1998, 2002) David Rosenbloom (2002; Rosenbloom, Carroll and Carroll 2000), Larry Terry (2003), and Dwight Waldo (1948), among others, for their efforts to focus awareness on the importance of public law and constitutionalism to the field of public management. She described them as scholars who have

championed the notion that it is often just as important, and perhaps even more so, for government to implement public policies and rely on managerial techniques that demonstrate values associated with responsibility, representativeness, responsiveness, rule of law, and especially constitutional competence (p. 540).

Newbold rests her argument for a constitutional school on three grounds: first and most importantly, she echoes Rohr’s conviction that the legitimacy of the administrative state requires fidelity to the constitution. Second, she notes the importance of a consistent terminology with which to define, discuss and advance scholarship devoted to issues of constitutional adherence. And finally, she emphasizes the need to extend scholarly discourse on these issues beyond the narrower academic silos within public management.

To say that an increase in research emphasizing the constitutional context of public management has failed to materialize would be an understatement, despite the advocacy of scholars like Rohr, Rosenbloom, Newbold and others. The anemic response is dispiriting for several reasons, not least because more attention to the constitutional and legal imperatives of public management would provide an appropriate and overdue rebuttal to the repeated, thoughtless and widely accepted mantra that government should be “run like a business,” with its unmistakable implication that specialized knowledge or skills are unnecessary to successful public administration. The assumption is apparently that anyone possessing “common sense” business skills is thereby equipped to capably manage the operations of government agencies, no matter the agency’s mission or the complexity of its assignments.

When significant segments of the population do not know the history, philosophy or contents of their country’s Constitution, they cannot judge the propriety of public administrators’ behaviors. When public managers are uncertain of the professional or ethical behaviors required by the Constitution, they may find themselves obeying or enforcing Congressional or Administrative mandates that contravene constitutional values and erode democratic norms. In the wake of the 2016 election, public debate over the constitutionality of several actions taken by the new Trump Administration has become ubiquitous; unfortunately, that debate has also placed the public’s widespread lack of civic literacy on prominent display. That lack of basic civic and constitutional knowledge is apparently shared by a depressing number of public officials, both elected and appointed.

The Journal of Public Integrity recently published an article in which I explored the importance of grounding public management ethics and performance in a deep understanding of the constitutional culture, especially in a country as diverse as America:

Unlike citizens of countries characterized by racial or ethnic homogeneity, American identity is rooted in allegiance to a particular worldview; it is based upon an understanding of government and citizenship originating with the Enlightenment and subsequently enshrined in the U.S. Constitution and Bill of Rights. Understood in this way, “constitutional culture” has a considerably broader scope than law and policy; it is an expression of the ongoing dialectic between a society’s legal norms and the broader culture within which those norms are situated and must be understood. The American “constitutional culture” arises from the operation of our constitutional values in a radically heterodox culture, and the effects of that interaction on policy choice and contestation.

Decisions made by those who designed America’s constitutional architecture have shaped contemporary definitions of public and private, notions of governmental and personal responsibility, and conceptions of human rights. They dictate the manner in which we frame and understand civic responsibility, and allocate collective social duties among governmental, nonprofit and private actors. In short, those initial constitutional choices have been constitutive of a distinctive American culture. What Kennedy and Schultz have called “the Constitutional Ethic” is behavior grounded in, and compatible with, the American Constitution (2011). (Kennedy 2012)

Survey research offers substantial support for the proposition that American voters believe our national government is broken. The just-concluded presidential campaign made it abundantly clear that we lack a common understanding of what it is that government should do, and disagree rather strongly on the methods elected officials should employ in the discharge of their duties. That lack of a common understanding of America’s legal culture, or even a common vocabulary for exploring our differences, is exacerbated by the internet and social media, which enable citizens to live within information “bubbles” consistent with their worldviews. This state of affairs poses immense challenges to public administrators, whose effectiveness requires a widely shared, if necessarily superficial, agreement on the purposes of America’s governing institutions and an ability to recognize the bases of government legitimacy.

It is not the job of public management scholars to provide the broader American public with the requisite levels of civic knowledge, but those scholars can examine the causes and consequences of the public’s anger with its governing institutions, and the degree to which that anger might be ameliorated by changes in the ways in which public managers communicate or operate. Researchers can assess the extent to which the practical imperatives of the administrative state have suffocated or displaced the constitutional norms to which they should be subservient, and offer correctives where appropriate. Even the necessary “nuts and bolts” literature can remind the profession of its constitutional roots. In the past thirty years, however, literature that addresses these important connections between constitutional theory and management practice, between the rule of law and the exercise of public power and discretion, has been all too rare. Let us hope that the next thirty years’ literature corrects that deficiency.

References

Bertelli, A.M. and Lynn, L.E. (2006). Madison’s Managers: Public Administration and the Constitution. JHU Press.

————————————(2006) “Public Management in the Shadow of the Constitution.” Administration and Society. Vol. 38, #1.

Brudney, J.L., Hebert, F.T. and Wright, D.S. (1999). “Reinventing Government in the American States: Measuring and Explaining Administrative Reform. Public Administration Review 59(1) January/February. Pp. 19-30.

Christensen, R.K. (2009) “Running the Constitution: Framing Public Administration.” Public Performance and Management Review 32(4) June. Pp. 604-609.

Cook, B.J. (1996). Bureaucracy and Self-Government: Reconsidering the Role of Public Administration in American Politics. Baltimore: Johns Hopkins University Press.

Cooper, P.J. (2002) Governing by Contract: Challenges and Opportunities for Public Managers. Washington, D.C.: CQ Press.

Cooper, T.L. (1991) An Ethic of Citizenship for Public Administrators. Englewood Cliffs, N.J. :Prentice-Hall.

————–(1994). Handbook of Administrative Ethics. New York. Marcel Dekker.

Cooper, T.L. and Wright, N.D. (eds. 1992) Exemplary Public Administrators: Character and Leadership in Government. San Francisco: Jossey Bass.

Greene, J.D. (2002) Cities and Privatization: Prospects for the New Century. Upper Saddle River, N.J.: Prentice-Hall

Gronbjerg, K.A. (1993) Understanding Nonprofit Funding: Managing Revenues in Social Services and Community Development Organizations. San Francisco: Jossey-Bass.

 Hall, L. and Kennedy, S.S. (2008) “Public and Nonprofit Management and the ‘New Governance’” American Review of Public Administration. (Vol. 38, No. 3). Pp 307-321

Kennedy, S.S. (2000) “Back to Basics: Citizenship, Public Administration and the Constitution.” Journal of Public Affairs Education. Vol. 6, #4, October.

—————“When is Public Private? State Action, Privatization and Public-Private Partnerships.” George Mason Civil Rights Law Review. Vol. 11 #2, Spring 2001.

—————( 2013) “Civic Literacy and Ethical Public Service: An Under-Appreciated Nexus.” Journal of Public Integrity. Vol. 15, #4 .

Kennedy, S.S. and Schultz, D. (2010) American Public Service: Constitutional and Ethical Foundations. Jones and Bartlett Publishers

Kettl, D.F. (2000). The Global Public Management Revolution: A Report on the Transformation of Governance. Washington, D.C. Brookings Institution.

Light, P.C. (2006). “The Tides of Reform Revisited: Patterns in Making Government Work, 1945-2002.” Public Administration Review 66(1) pp. 6-19.

Lynn, L.E. “Public Management in the Shadow of the Constitution.” Administration and Society 38(1) March. Pp.31-57.

Marvel, M.K. and Marvel, H.P. (2007) “Outsourcing Oversight: A Comparison for In-House and Contracted Services” Public Administration Review 67(3) pp. 521-530.

McGuire, M. and Agranoff, R. (2003) Collaborative Public Management: New Strategies for Local Governments. Washington, D.C.: Georgetown University Press.

Milward, H.B. (1994) “Nonprofit Contracting and the Hollow State: A Review Essay.” Public Administration Review 54: January/February pp. 73-77.

Milward H.B. and Provan, K.G. (1993) “The Hollow State: Private Provision of Public Services” in H. Ingram and S.R. Smith (eds.) Public Policy for Democracy (Helen Ingram and Steven Rathgeb Smith, eds.) Washington, D.C. : Brookings pp. 222-237.

Milward, H.B., Provan, K.G. and Else, B. (1993). “What Does the Hollow State Look Like?” in B. Bozeman (ed.) Public Management: The State of the Art. San Francisco, Jossey Bass pp. 309-322.

Newbold, S.P. (2010) “Toward a Constitutional School for American Public Administration.” Public Administration Review 70(4) July/August. Pp. 538-546.

O’Leary, R. and Wise, C. (1991) “Public Managers, Judges and Legislatures: Redefining the ‘New Partnership.’” Public Administration Review 51(4). Pp. 316-327.

————————— (2003) “Breaking Up is Hard to Do: The Dissolution of Judicial Supervision of Public Services.” Public Administration Review 63(2) pp. 177-91.

Perry, J.L. and Wise L.R. (1990) “The Motivational Bases of Public Service.” Public Administration Review 50(3): pp. 367-373.

Rohr, J.A. (1986). To Run a Constitution: The Legitimacy of the Administrative State. Lawrence: University of Kansas.

————(1998) Public Service, Ethics and Constitutional Practice. Lawrence: University of Kansas.

———–(2002) Civil Servants and Their Constitutions. Lawrence: University of Kansas.

Rosenbloom, D.H. (1971) Federal Service and the Constitution: The Development of the Public Employment Relationship. Ithaca, N.Y.: Cornell University Press.

————- (1983) “Public Administrative Theory and the Separation of Powers.” Public Administration Review 43(3): pp. 219-27

————(1987) “Public Administrators and the Judiciary: The “New Partnership.” Public Administration Review 47(1): pp. 75-83

————-(2002) Building a Legislative-Centered Public Administration: Congress and the Administrative State, 1946-1999. Tuscaloosa: University of Alabama Press.

————-(2003) Administrative Law for Public Managers. Boulder, CO: Westview Press.

Rosenbloom, D., Carroll, J.D. and Carroll, J.D. (2000). Constitutional Competence for Public Managers: Cases and Commentary. Itasca: IL. F.E. Peacock.

Rosenbloom, D. and Kravchuk, R.S. (2005) Public Administration: Understanding Management, Politics and Law in the Public Sector. 6th ed. Boston: McGraw-Hill.

Rosenbloom, D. and McCurdy, H. (eds. 2007) Revisiting Waldo’s Administrative State: Consistency and Change in Public Administration. Washington, D.C.: Georgetown University Press.

Sclar, E.D. (2000). You Don’t Always Get What You Pay For: The Economics of Privatization. Ithaca, N.Y.: Cornell University Press.

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Spicer, M. and Terry, L.D. (1993). “Advancing the Dialogue: Legitimacy, the Founders and the Contractarian Argument. Public Administration Review 53(3) pp. 264-67.

Starr, P. (1987) “The Limits of Privatization.” In Hanke, S. H. (ed) Prospects for Privatization. New York: Academy of Political Science.

Smith, S.R. and Lipsky, M. (1993) Nonprofits for Hire. Cambridge, MA. Harvard University Press.

Terry, L.D. (2003) Leadership of Public Bureaucracies: The Administrator as Conservator. Armonk, N.Y.: M.E. Sharpe.

Waldo, D. (1948). The Administrative State: A Study of the Political Theory of American Public Administration. New York: Ronald Press.

Comments

Electoral Integrity: How Gerrymandering Matters

If there has been a constant theme running through 2016 political campaigns, it is that the “system” is rigged and democratic processes no longer work. To the extent that culprits responsible for this state of affairs are identified, political activists on the Left (most prominently Bernie Sanders) point to money and the outsized influence of the 1%, while those on the Right (most prominently Donald Trump) attack “political correctness,” immigrants and minorities. Among members of the general public, dissatisfaction with the country’s current direction is attributed to a wide number of additional grievances. One such grievance that has gained traction over the past several years is the perceived impact of state-level partisan redistricting, or gerrymandering, on both state and federal elections.

The public’s widespread belief that gerrymandering is largely responsible both for “gaming the system,” via the growth in the number of noncompetitive electoral districts and for current extremes of partisanship has revived efforts to reform the way in which states handle redistricting, and has reignited scholarly disputes over the degree to which the ills ascribed to partisan redistricting are accurate. At the same time, pending lawsuits challenging both redistricting practices and certain of those reforms will soon require the Supreme Court to revisit its redistricting jurisprudence.

Popular opinion would seem to weigh in on the side of those who argue that partisan redistricting has distorted the electoral process. (Li 2015, Hulse 2015, Draper 2012) Popular concern about the deleterious consequences of partisan redistricting is augmented by activism undertaken by think tanks and good government organizations, among them the Brennan Center, the League of Women Voters and Common Cause. Belief in the efficacy of partisan line-drawing is also exhibited by the political insiders who go to great lengths and significant expense to draw lines favorable to their electoral prospects. (Draper 2012)

It is thus timely to revisit not just the contending academic arguments about gerrymandering’s influence on political polarization and partisan outcomes generally, but also the existing constitutional jurisprudence and especially the issue whether political rather than racial gerrymandering is justiciable, and if so, the appropriate standard to be applied. Redistricting reforms in states like California, Arizona and Iowa have prompted efforts to revise redistricting processes in a number of other states, and cases pending before or on their way to the Supreme Court are poised to clarify the extent to which the Court will intervene in state redistricting decisions when partisan advantage, rather than race, is at issue. Finally, emerging analyses of the experiences of the states that have implemented reforms may provide evidence of the efficacy or lack thereof of redistricting reform, and confirm or fail to confirm the belief that such reforms can generate increased electoral competition, increase turnout, or decrease partisanship to any appreciable degree.

This article makes two arguments: first, that many of the data-driven conclusions of political scientists who dismiss the impact of gerrymandering —although accurate as far as they go—don’t go far enough; that is, they ignore the extent to which redistricting may be implicated in the phenomena to which they do attribute the growth in the number of noncompetitive districts; and 2) the existence of a widespread public conviction that gerrymandering is undermining democratic legitimacy by depriving voters of voice has political consequences that may be difficult if not impossible to measure, but should not for that reason be dismissed as inconsequential. (As the Supreme Court noted in Shaw v. Reno, reapportionment is one area in which appearances do matter.)

The Scholarship

There is a copious scholarly literature dealing with gerrymandering, the practice of partisan redistricting that takes its name from then-governor of Massachusetts Elbridge Gerry. Over the years, scholars have disagreed about the actual impact of such practices. One group of researchers has argued that, although redistricting may matter at the margins, it is only one cause among many for the lack of competitiveness that characterizes state-level elections and elections for the U.S. House of Representatives. One of the most frequently cited authorities for the proposition that redistricting is not the primary cause of non-competitiveness is a study by Abramowitz, Alexander and Gunning (2006). They tested three causal hypotheses: redistricting, partisan polarization and incumbency, and concluded that only the latter two were part of the “pattern of reinforcing advantages” that had led over the years to “extraordinarily uncompetitive” elections. They particularly noted the fundraising disparity between incumbents and challengers, although they did not consider the extent to which creation of safe seats via gerrymandering might contribute to that particular advantage of incumbency. Campbell and Jurek ( 2003) also attribute the decline of competition to the fundraising and other advantages enjoyed by incumbents.

Both political polarization and the lack of electoral competitiveness have been attributed to the growth of polarization between the states (Enten 2013), to geographical self-sorting (Wasserman 2014) and to single-member Congressional districts (Drutman 2016) rather than to gerrymandering.

A widely-cited article by McCarty, Poole and Rosenthal (2006) also dismissed the importance of gerrymandering to political polarization. (Finding “little evidence” for such a link, they did note that gerrymandering operates to increase Republican seat share in the House of Representatives, but concluded that this fact was not an important source of polarization.) However, their final paragraph is worth quoting, because it recognizes both the role of gerrymandering in reducing competition and the importance of public perceptions of legitimacy:

“Nothing we say should be interpreted as contentment with congressional districting as it is currently practiced. The protracted political and legal battles over the boundaries cannot help but diminish the legitimacy of American democracy. And redistricting does appear to have a negative value on electoral competition. There are many reasons to do something about gerrymandering. But reducing polarization is not one of them.”

Other researchers and political figures have connected gerrymandering to both non-competitiveness and polarization. Carson, Crespin, Finocchiaro and Rohde (2007) concluded that redistricting is one among other factors producing polarization in the House of Representatives; former Congressman Lee Hamilton (2000) has written that the way in which congressional districts are drawn contributes to the “overwhelming” advantages enjoyed by incumbents; and Sam Wang of Princeton’s Program in Law and Public Affairs has statistically calculated the number of voters effectively disenfranchised by gerrymanders (Wang 2013). In 2006, Thomas Mann implicated gerrymandering in the polarization of the House of Representatives, and in a book co-authored with Norman Orenstein (2008), Mann argued that the decline in electoral competition and the entrenchment of partisan behavior has diminished incentives for compromise and bipartisan behaviors.

Interestingly, one of the most complete reviews of recent scholarly literature on the effects of partisan redistricting appears in an amicus brief filed by Mann and Orenstein on behalf of Arizona’s independent commission in Harris v. Arizona Redistricting Commission. Mann and Orenstein are political scientists who have written extensively about redistricting, and about “packing” (creating districts with supermajorities of the opposing party) “cracking” (distributing members of the opposing party among several districts to ensure that they don’t have a majority in any of them) and “tacking” (expanding the boundaries of a district to include a desirable group from a neighboring district). They cite to studies tying redistricting to the advantages of incumbency (Hirsh 2003, Issacharoff and Nagler 2007, Kang 2006, Levitt 2011), and also note that the reliance by House candidates upon maps drawn by state-level politicians operates to reinforce partisan rigidity.

Mann and Orenstein also cite to a 2009 article by Oedel, Lynch, Mulholland and Edwards, in which the researchers investigated whether representatives from districts drawn by independent commissions become less partisan.

“Contrary to the initial expectations of the authors, the evidence reviewed here suggests that politically independent redistricting seems to reduce partisanship in the voting behavior of congressional delegations from affected states in statistically significant ways.

There is a copious literature examining numerous other aspects of redistricting: questions of compactness and respect for communities of interest, the legal requirements imposed by various states, the mechanics of line-drawing, and especially the ways in which the mandates of the Voting Rights Act, both before and after its partial evisceration by the Court in 2013, interact with redistricting. Those issues are important, but ultimately tangential to the questions of competition, partisanship and perceived legitimacy considered here.

Whatever the scholarly doubts about the effects of partisan redistricting, a number of states are engaging in efforts to address the perception that district boundaries drawn as a result of political bias allow officeholders to choose their voters rather than the other way around, thus diminishing the integrity of the democratic process. The major challenge reformers face is the absence of judicial agreement on a standard of measurement that can be applied by mapmakers and courts to determine whether a given district’s boundaries have been drawn so as to make them constitutionally improper.

The Jurisprudence

The question whether gerrymandering violates the Constitution did not arise until 1962, when the Supreme Court decided Baker v. Carr, often referred to as the “one person, one vote” decision. In Baker, Tennessee citizens eligible to vote brought suit to redress what they alleged was a deprivation of their federal constitutional rights. Under the terms of a 1901 statute, Tennessee had apportioned seats in the state’s General Assembly and had subsequently failed to reapportion them, despite substantial growth in and redistribution of the State’s population. The plaintiffs asserted that , as a result, they suffered a “debasement of their votes” and were denied the equal protection of the laws. Lower courts had dismissed the suit on the grounds that political reapportionment was not justiciable, but the Supreme Court reversed, holding that an apportionment case may be reviewed on Fourteenth Amendment grounds, so long as these grounds are independent from questions clearly assigned to political decision-makers.

Subsequently, the Court has heard cases involving both racial and partisan gerrymandering; however, only two of those cases—Davis v. Bandemer and Vieth v. Jubelirer—focused exclusively on the issue of partisan redistricting. (A third case, League of American Citizens v. Perry (LULAC), challenged the propriety of a mid-decade redistricting in Texas, the only purpose of which, plaintiffs alleged, was to expand partisan advantage.)

In Davis v. Bandemer, Plaintiffs alleged that Indiana’s Republican-controlled legislature had gerrymandered state legislative districts after the 1980 census.

The Court narrowly held claims of partisan gerrymandering justiciable under the 14th Amendment’s Equal Protection Clause, but found that the mere fact of an adverse effect on proportional representation (the discrepancy between the percentage of votes garnered by a political party and the number of seats that party ultimately won) was not a sufficient standard to demonstrate both partisan purpose and effect.

The problem identified by the Court was the lack of a reliable standard for determining when a district had been intentionally gerrymandered for partisan advantage. Justice White led a plurality of the Court in holding that plaintiffs would be required to prove both discriminatory intent and discriminatory effect, and that “unconstitutional discrimination occurs only when an electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters influence on the political process as a whole” (at 132). The plurality’s standard thus required evidence of continued frustration of the will of the majority or continued frustration of the ability of an identifiable minority to influence the political process. The Bandemer challenge lost because only one election had been held since redistricting.

As one legal scholar noted,

“In terms of a legal standard, requiring litigants to suffer a continued burden makes sense, as a single election cycle has too many variables to definitively show that gerrymandering caused the election outcome. Conversely, if there has been a constitutional violation, requiring litigants to continue to suffer the violation seems like a perverse result.” (Butera 2015)

The standard applied by the plurality in Bandemer did not survive the Court’s analysis in Vieth v. Jubelirer. In that case, Democratic voters challenged the legislative districts drawn by Republicans in Pennsylvania following the 2000 census. There was agreement that Justice White’s standard was unworkable, but there the agreement ended. The four conservative judges argued that redistricting is a political question, and should not have been held to be justiciable; the four liberals argued that the Equal Protection Clause should apply; and Justice Kennedy disagreed with both positions. Kennedy rejected the Plaintiffs’ gerrymandering claim, but also rejected the argument that the issue was non-justiciable. The problem, for Kennedy, was the inability of litigants or members of the Court to devise a workable standard for determining whether a gerrymander had occurred. (Interestingly, the four Justices who believed the issue to be justiciable proposed three separate standards, none of which has been adopted.)

Even in LULAC, where the highly irregular mid-decade redistricting would seem to be convincing evidence of a partisan motive, Kennedy found legitimate legislative objectives sufficient to uphold the validity of the new districts.

In the wake of LULAC, a number of social scientists and lawyers have tried their hand at devising a standard that the court—and especially Justice Kennedy—will see as workable. Two cases, the Arizona case previously discussed and another from Maryland, may offer the Court opportunities to consider two very promising efforts to fashion such a standard.

In “Partisan Gerrymandering and the Efficiency Gap,” Stephanopolous and McGee (2014) proposed a standard incorporating the concept of “wasted votes.” As Stephanopolous has described this standard, the efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. “Wasted” votes are ballots that don’t contribute to victory for candidates; they may be lost votes cast for candidates who are defeated, or surplus votes cast for winning candidates in excess of what they needed to win. When a party gerrymanders a state, it tries to maximize the wasted votes for the opposing party while minimizing its own, thus producing what Stephanopolous and McGhee call an efficiency gap. In a state with perfect partisan symmetry and no gerrymandering, both parties would have the same number of wasted votes. As a matter of simple arithmetic, the efficiency gap is equal to a party’s undeserved seat share.

In their paper, Stephanopolous and McGhee go through several calculations based upon recent elections to demonstrate the relative simplicity and reliability of the efficiency gap.

Another proposed standard has been offered by Samuel Wang, in a paper for Princeton’s Program in Law and Public Affairs (2015). Wang observes that identification of partisan asymmetry requires examining all of the districts in a state, and says “this is a job for statistics.” In a New York Times op-ed explaining the approach developed in his paper (2016), Wang writes:

“An easy test is available that directly measures overall bias: the difference between the average and the median. This century-old statistic uses math that is in the Common Core standards for sixth grade. It also won this year’s competition for a gerrymandering standard sponsored by the nonpartisan organization Common Cause.”

The average-median difference is simple enough that a busy judge can calculate it in the margin of a brief. Here’s how it works. First, calculate the targeted party’s median vote share, which is defined as the middle district on a list that is sorted in order of increasing party vote share. If the targeted voters have been packed into a few districts , they are counted in the average but have little effect on the median. Thus, perhaps counter-intuitively, it is possible for more than half the districts to have a below-average number of partisan supporters.

Wang applied his standard to the Arizona district that is at issue in the case pending before the Supreme Court and concluded that the median Democratic vote share was less than the average by 3.3 percentage points, “a direction that slightly benefitted the Republicans….If the Commission was trying to show special favor to Democrats, it did a poor job.” (In that case, Republicans are claiming that one of the districts drawn by Arizona’s nonpartisan commission intentionally and unconstitutionally favored the Democrats. The Commission attributed the population discrepancy to requirements of the Voting Rights Act, and defended its magnitude as falling within allowable bounds, a defense with which Wang agreed.) In Wang’s paper, he supplements this first statistical test with two others, and demonstrates that the tests can be used singly or in tandem, to determine the statistical likelihood of a particular outcome, that is, whether the outcome falls within or outside of what Wang calls “the zone of chance.”

The Arizona challenge is to the state’s use of an independent commission, and is unlikely to involve a direct consideration of potential standards. However, a case working its way to the Court from Maryland may offer an opportunity to directly evaluate the utility of various proposed standards. Shapiro v. McManus challenged Democratic redistricting in that state. The District Court dismissed the challenge as insubstantial without convening a three-judge panel, despite the fact that the rules call for such a panel unless the case is “obviously frivolous.” The Supreme Court reversed, finding that a three-judge panel should have heard the arguments. That ruling was procedural, and did not address the merits, but Court observers are cautiously optimistic about the case’s potential to resolve the standards issue, because rulings by three-judge panels go straight to the Supreme Court, bypassing the usual appeals process. The Maryland case could thus give the Court its first opportunity in nearly a decade to revisit the issue of partisan gerrymandering.

Another case, from Wisconsin, is also in the pipeline, albeit further from Supreme Court consideration; in Whitford v. Nichol, Democrats are challenging a 2012 redistricting plan that they allege is the product of extreme gerrymandering, and they are relying upon the efficiency gap test to demonstrate the accuracy of that allegation. The District Court declined to dismiss the claims, despite noting that plaintiffs will face significant challenges proving their case.

Reforms and Consequences

Over the past several years, a number of organizations and citizen groups have worked toward redistricting reform. In addition to the Brennan Center, the League of Women Voters and Common Cause, mentioned earlier, organizations like Fair Vote, End Gerrymandering, Ballotpedia, Redistricting Online, the National Council of State Legislatures, and the Public Mapping Project all maintain active and informative websites devoted to providing information and assistance to grassroots reform efforts.

Complicating these efforts is the fact that state redistricting procedures vary widely. Even the six states with independent commissions have varying membership requirements and procedural rules governing the establishment of boundaries for both state legislative and congressional districts. Although a number of other states have advisory commissions with varying degrees of input in the process, the six states that have thus far committed the redistricting process to independent commissions are Alaska, Arizona, California, Idaho, Montana and Washington.

Despite the continued insistence of many social scientists that gerrymandering is not a significant causal factor in non-competitive districts or political polarization, the early results of redistricting reforms have been salutary. This article has previously cited Oedel, Lynch, Mulholland and Edwards, who were surprised to find that redistricting reform moderated the partisanship of Representatives. Stephanopoulos has found that the use of neutral institutions such as commissions produces fairer and more competitive elections. (DATE) In a 2008 study, Mark Dunkelman calculated that truly competitive House districts could generate up to eleven million additional votes, and that those votes would come disproportionately from states with particularly egregious gerrymandering practices. There is also emerging research supporting the proposition that redistricting reforms reduce the incidence of uncontested elections and increase the likelihood of a quality challenger entering the race (Cottrill 2012). At Lead or Leave, an Indiana Foundation formed to advance redistricting reform, Iowa is held up as a success story; in the wake of its redistricting reforms, elections in that state have more closely reflected the actual partisan preferences of Iowa voters (Zellner and Nierzwicki, 2014).

Conclusion

The scholarship may be contested, but if the numerous citizen organizations, editorials and letters to the editor are to be believed, the public is convinced that partisan redistricting is a major contributor to democratic dysfunction. It is difficult to quantify the extent to which perceptions of gerrymandering contribute to voter cynicism and apathy, but that difficulty does not justify dismissing the importance of those perceptions to political legitimacy.

In a 2012 paper delivered to the Western Political Science Association, James Cottrill made an important and frequently overlooked point: there are consequences of redistricting reforms that scholars have overlooked, because they are difficult or impossible to measure.

“In an era of heightened mistrust of government, there may be intrinsic benefits to redistricting reform that are not directly related to electoral outcomes, such as greater trust in government and increased political participation.”

Marc Hetherinton (1998) has also assessed the importance and role of political trust in the electoral process.

If the Supreme Court accepts one of the proposed standards for evaluating whether a gerrymander has occurred, we may have the opportunity to find out whether those benefits are real, and if so, how extensive they may be. As this is written, pundits are attributing the appeal of extremism and support for “outsider” candidates in the 2016 election cycle to voter anger and frustration. To the extent that gerrymandering contributes to voters’ cynicism, reforms that encourage more competition and less partisanship, while no panacea, couldn’t hurt.

References

Abramowitz, A., Alexander, B., & Gunning, M. (2006). Incumbency, Redistricting and the Decline of Competition in U.S. House Elections. The Journal of Politics, 68, (1), 75-88.

Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. ___ (2015)

Baker v. Carr, 369 U.S. 186 (1962)

Butera, J. (2015). Partisan Gerrymandering and the Qualifications Clause. Boston University Law Review, 95, 303-334.

Campbell, J. E., & Steve J. J. (2003). The Decline of Competition and Change in Congressional Elections. In Congress Responds to the Twentieth Century. Ahuja and Dewhurst, eds. (pp. 43-72) Columbus, OH: Ohio State University Press.

Carson, J.L., Crespin, M., Finocchiaro, C.J., & Rohde, D.W. (2007). Redistricting and Party Polarization in the U.S. House of Representatives. American Politics Research, 35 (6), 878-904.

Cottrill, J. B. (2012, March) Non-Legislative Redistricting and the Public Trust: The Indirect Benefits of Electoral Reform. Paper presented at the 2012 Annual Meeting of the Western Political Science Association, Portland, OR.

Davis v. Bandemer, 478 US 109 (1986)

Draper, R (2012, October). The League of Dangerous Mapmakers. The Atlantic, http://www.theatlantic.com/magazine/archive/2012/10/the-league-of/309084/

Drutman, L. (2016, February 14). The clever strategy that could stop the polarization of American politics. Quartz. http://qz.com/615630/the-clever-strategy-that-could-stop-the-polarization-of-american-politics/

Dunkleman, M. (2008). Gerrymandering the Vote: How a ‘Dirty Dozen’ suppressed as many as 9 million voters. Democratic Leadership Council.

Enten, H. J. (2013) Why ‘gerrymandering’ doesn’t polarize Congress the way we’re told. The Guardian, http://www.theguardian.com/commentisfree/2013/jan/03/gerrymandering-polarise-congress

Hamilton, L. (2000) Noncompetitive Elections for Congress. The Center on Congress at Indiana University.

Hulse, C. (2016, January 25). Seeking to End Gerrymandering’s Enduring Legacy New York Times, January 25, 2016. Retrieved from http://www.nytimes.com/2016/01/26/us/politics/seeking-to-end-gerrymanderings-enduring-legacy.html?_r=0

Hetherington, M. J. (1998). The Political Relevance of Political Trust. The American Political Science Review, 92 (4), 791-808.

Hibbing, J.R. & Theiss-Morse, E. (1995) Congress as Public Enemy: Public Attitudes Toward American Political Institutions. New York, NY: Cambridge University Press.

Hursh, S. (2003). The United States House of Unrepresentatives: What Went Wrong in the Latest Round of Redistricting. Election Law Journal: Rules, Politics, and Policy, 2 (2), 179-216.

Issacharoff, S., & Nagler J. (2007). Protected from Politics: Diminishing Margins of Electoral Competition in U.S. Elections. Ohio State Law Journal. 68, 1121-37.

Kang, M. S.\ (2006). De-Rigging Elections: Direct Democracy and the Future of Redistricting Reform. Washington University Law Review, 84, 667-716.

League of American Citizens v. Perry, 548 US 399 (2006)

Levitt, J. (2011). Weighing the Potential of Citizen Redistricting. Loyola Law Review, 44 (2), 513-544.

Li, M. (2015 July 13). State Gerrymandering Reforms Start to Show Results. Retrieved from https://www.brennancenter.org/blog/state-gerrymandering-reforms-start-show-results

Li, M. (2015 December 11). Could Partisan Gerrymandering Be Headed Back to the Supreme Court? Retrieved from https://www.brennancenter.org/blog/could-partisan-gerrymandering-be-headed-back-supreme-court

Mann, T. (2006). Polarizing the house of representatives: how much does gerrymandering matter? In Brady, D. & Nivola, P. Red and blue nation? Characteristics and Causes of America’s Polarized Politics, (Vols. 1 pp. 263-282). Baltimore, M.D.: Brookings Institution Press.

Mann, Thomas and Norman Ornstein. Brief for Amici Curiae in Support of Appellees, Arizona State Legislature v. Arizona Independent Redistricting Commission. 2015.

Mann, T. & Ornstein, N. (2012) It’s Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism. New York, NY: Basic Books.

Mann, T. & Ornstein, N. (2008) The Broken Branch: How Congress is Failing America and How to Get it Back on Track. New York, NY: Basic Books.

McCarty, N., Poole K.T., & Rosenthal H. (2006). Does Gerrymandering Cause Polarization? American Journal of Political Science 53 (3), 666-680.

Oedel, D.G., Lynch, A.K., Mulholland, S.E., & Edwards, N.T. (2009). Does the Introduction of Independent Redistricting Reduce Congressional Partisanship? Villanova Law Review, 54 (1), 57-90.

Opdycke, K., Segura, P. & Vasquez, A.M. (2013). The Effects of Political Cynicism, Political Information Efficacy and Media Consumption on Intended Voter Participation. Colloquy, 9, 75-97.

Shapiro v. McManus, 577 US _ (2015)

Shaw v. Reno, 509 US 630 (1993)

Stephanopolous, N.O. (2013). The Consequences of Consequentialist Criteria. U.C. Irvine Law Review, 3, 669-715.

Stephanopolous, N.O. & McGhee, E.M. (2015). Partisan Gerrymandering and the Efficiency Gap. University of Chicago Law Review. 82, 831-900.

Vieth v.Jubelirer, 541 US 267 (2004)

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Whitford v. Nichol (W.D. Wisconsin)

Wittman v. Personhuballah

Zellner, S. & Nierzwicki, F. Drawing Lines in the Sand: Redistricting Commissions in the United States. Unpublished manuscript. School of Public and Environmental Affairs, Indiana University-Purdue University Indianapolis, Indianapolis, Indiana.

Comments

Is Low Civic Literacy a Wicked Problem?

In 1973, Horst W. J. Rittel and Melvin M. Webber published an influential article on the nature of social problems. Titled “Dilemmas in a General Theory of Planning,” the article focused upon the difficulty of solving what they dubbed “Wicked Problems,” and triggered an ongoing scholarly discussion about the nature of such problems and the differences between efforts to craft social policies addressing them and the “tamer” and more linear approaches appropriate to the solution of scientific problems (Rittel and Webber, 1973).

As Rittel and Webber (1973) defined them, stubborn (“Wicked”) problems are those implicating value judgments and perceptions of equity. Given the pluralist nature of contemporary democratic societies, those values and perceptions will be heterogeneous, making even agreement on policy goals a contested exercise. Furthermore, wicked problems are by definition systemic, and efforts to address them will have “waves of repercussions that ripple through such systemic networks” (p. 156).

“One of the most intractable problems is that of defining problems (of knowing what distinguishes an observed condition from a desired condition) and of locating problems (finding where in the complex causal networks the trouble really lies). In turn, and equally intractable, is the problem of identifying the actions that might effectively narrow the gap between what-is and what-ought-to-be” (p. 159).

Rittel and Webber (1973) proceeded to identify ten characteristics of wicked problems, and subsequent scholarship has elaborated on them (Richey 2005, 2011; Weber and Khademian 2008; Conklin 2001). Indeed, a robust and widely diverse scholarly literature has developed in which the notion of problem “wickedness” has been applied to everything from ecological challenges and environmental degradation (Brennan 2004; McKinney and Harmon 2004; Frame 2008; Frame and Brown 2008; Rayner 2006), to business and manufacturing (Camillus 2008; Conklin 2005; Powell, Kopet and Smith-Doerr 1996), to democracy, citizenship and politics (Barabas, Jerit, Pollock and Rainey 2014, Mathews 2008; Chrislip and Larson 1994) to public administration and governance (Head and Alford 2013; Feldman and Khademian 2002; Kettl 2003, 2202; Bardach 2001; Evans 2000; Klijn and Koppenjan 2000; Agranoff and McGuire 1998) to general organizational theory (Kedia and Mukherji 1999; Susskind, McKearnan and Thomas-Larmer 1999; Behn 1998), among many others.

A scholarly literature particularly relevant to problem “wickedness” is network theory, which has grown significantly since the introduction of the concept of “wicked problems.” As Weber and Khademian have documented (2008), the study of networks has augmented, and arguably is replacing, prior scholarship focused upon hierarchies and markets. Networks have come to be seen as an effective means of addressing complex problems and achieving collective goals. (Peters 2001 Podolny and Page 1998; Kickert, Klijn and Kippenjan 1997; Powell, Kopet and Smith-Doerr 1996). Weber and Khademian define effectiveness in this context as collaborative capacity, improved policy performance, and accountability, and argue that addressing the special attributes of “wicked problems” requires the sorts of collaboration and knowledge sharing that networks make possible.

While the literature of network theory has seen a copious expansion, scholarship applying the concept of problem wickedness to education, and especially to citizenship education, has remained relatively sparse. Educators and educational philosophers have begun to investigate the intersection of growing complexity and the transmission of civic knowledge (Hipkins 2010; Kress 2008; Gilbert 2005; Boyd, Bolstad, Cameron, Ferral, Hipkins, DcDowall et al 2005; Westheimer and Kahne 2004) but none have as yet applied the lens of “wickedness” to the specific challenges of civic education.

In order to determine whether the transmission of civic knowledge is a wicked problem, and whether the stubbornly low levels of American civic literacy can properly be categorized as “wicked,” it is necessary to determine how many of the problems faced by civic educators match the characteristics of wickedness enumerated by Rittel and Webber.

A caveat is important here: most wicked problems will not exhibit all ten of wickedness’ defining characteristics. Scholars are in agreement, however, that the greater the number of such characteristics, the “wickeder” the problem. The elements of wicked problems, as Rittel and Webber catalogued them, are: no agreed-upon formulation/definition of the problem; no “stopping rule” (solutions can always get better); solutions will not be true or false, but rather good or bad; there is no immediate and no ultimate test of solutions; every solution is a “one-shot” because there is no opportunity to learn by trial and error; there is no enumerable or exhaustively describable set of potential solutions; every wicked problem is essentially unique; every wicked problem is a symptom of another problem; discrepancies can be explained in numerous ways; and the planner (or problem solver) has no right to be wrong.

“So what is the problem that the term “wicked problem” addresses? The common sense approach to WPs is fairly straightforward: As stated above, WPs are about people – the most “complex adaptive systems” that we know of. They are subjective problems. Everything that has to do with people and society is ultimately subjective. Above all, WPs are about people as stakeholders: competing and cooperating, vying for position, willing to reflect, and to change their positions on the basis of this self-reflection. This is why such problems do not have stable problem formulations; do not have pre-defined solution concepts; and why their course of development cannot be predicted. This is also why attempting to causally model or simulate the paths of development of such problem complexes is often worse than useless” (Richey 2005).

Weber and Khademian (2008) offered a somewhat abridged description of the elements of wickedness, summarizing the more elaborate ten-characteristic typology offered by Rittel and Webber into three major dimensions: wicked problems are unstructured (their precise causes and effects are difficult to isolate, the problem-solving process is fluid, and there is little or no consensus on problem definition or solutions); they are cross-cutting (having multiple stakeholders with diverse perspectives, requiring trade-offs among competing values); and above all, relentless (there is no finish line).

Civic Literacy and Civic Skills

 

As used in this analysis, civic literacy refers to knowledge of America’s history, governing philosophy and structures. It is different in kind from the sort of “civic intelligence” addressed by Douglas Schuler and others (Schuler 2014) and indeed, would seem to be far more concrete than the social impairments that work against achievement of such civic intelligence.

At first blush, low civic literacy, defined as widespread ignorance of basic civic knowledge, would not seem to be a wicked problem. If people lack information about their history and government structures, if they lack the tools to understand the roots and/or nature of the issues they face, the solution seems simple enough: they should be educated, and provided with that information and those tools, preferably in school. It is only when we look more closely at the nature of the problem that we begin to understand the multiple ways in which the challenge presented by the deficit of civic knowledge may be wicked. To begin with, the educational process itself has multiple characteristics of wickedness.

For example, it’s often said that the education problem can’t be solved until the poverty problem is addressed. These two problems are intertwined not only with each other, but with many other social issues such as crime, child care, health care, and unemployment. These entangled problems are made even more complex because they are values-laden. It’s impossible for everyone to reach consensus about how they should be addressed. There is no right or wrong answer, and each attempted solution will give rise to other anticipated, unanticipated, and delayed wicked problems. Furthermore, each wicked problem can be considered a symptom of another wicked problem because of their interconnectedness. Wicked problems are never solved once and for all, just re-solved over and over again. Hence, the current state of affairs in education (McMahon, 2011).

When we focus upon education in service of civic participation, we encounter still other aspects of wickedness. Although there is significant debate about causation–about which comes first, lack of knowledge or lack of engagement– there is substantial evidence of the correlation between civic ignorance and civic apathy and disengagement (Delli Caprini, Keeter and Scott 1996; Levine 2011).

There is also ample research confirming the existence of what has been called a “civic deficit” (Delli Caprini, Keeter and Scott 1996; Galston 2001, 2004, 2007; Intercollegiate Studies Institute 2008, 2011; Schudson 2000; Torra & Novarro, 2008; Fleming 2012; Levine 2011). A recent blog post from the Center for Civic Literacy summarizes some of that research:

Only 36 percent of Americans can name the three branches of government. Fewer than half of 12th grade students can describe the meaning of federalism. Only 35% of teenagers can identify “We the People” as the first three words of the Constitution. Fifty-eight percent of Americans can’t identify a single department in the United States Cabinet. Only 5% of high school seniors can identify checks on presidential power, only 43% could name the two major political parties, only 11% knew the length of a Senator’s term, and only 23% could name the first President of the United States (Kennedy, 2015).

In What Way is Civic Literacy a “Wicked” Problem?

 

Existing research on civic knowledge confirms that deficits in civic literacy are real, but that research also displays the heterogeneous value commitments identified by Rittel and Webber. There is no agreement, for example, on the definition, causes or consequences of the problem. In some cases, there is disagreement about whether this lack of knowledge should even be considered a problem; a number of people dismiss the importance of content knowledge, asserting that cultural attitudes are more important. Others question whether low levels of political participation are really attributable to civic ignorance, suggesting that apathy and even satisfaction with the status quo are more likely to explain a lack of civic engagement (Dudley & Gitelson, 2002; Galston, 2004).

Among those who believe that lack of basic information is a genuine problem, there is no consensus on the content of the civic information with which a minimally-literate citizen should be familiar. American history? The Constitution? What about basic economic or scientific principles necessary to an understanding of current events (Kennedy, 2013)? And what about those current events? Should a civically-literate American know the names and partisan affiliations of at least high-ranking elected officials? The names and locations of countries with which we are at war? The identities of sitting Supreme Court Justices? Scholars are deeply divided over the value of such knowledge, with some dismissing it as trivia not reflective of or necessary to a genuine understanding of the operation of our democratic system, and others arguing that truly engaged or informed citizens will inevitably acquire such information.

Not only is there substantial disagreement on the nature of the information necessary to informed participation in the democratic process, Americans’ value heterogeneity challenges efforts to reach consensus on the meaning of even that content widely agreed to be an essential element of civic knowledge. This is especially true with respect to our basic legal structure. The Bill of Rights, in particular, is a statement of broad principles, and the proper application of many of those principles to new and emerging “facts on the ground” has historically been contested even by legal scholars. What has been called “constitutional competence” (Rosenbloom, 2000) is further challenged by partisans and outright propagandists who seek to exploit the inherently contestable nature of Constitutional language in order to further ideological or religious agendas. This means that even in areas where there is broad agreement about the sorts of basic civic knowledge citizenship requires, there is considerable dispute over the proper way to understand those principles and the way in which civics should be taught. In Oklahoma last year, for example, lawmakers threatened to defund Advanced Placement American history because they deemed the new curriculum, which emphasized critical thinking, insufficiently “pro American.”

Conservative critics attacked the new course guidelines, and charged that the increased inclusion of negative episodes constituted “rewriting American history” in ways that undercut (their version of) the purpose of teaching that history.

If we are judging civic competence by reference to participation rather than knowledge, what should count as adequate engagement? Voting in a Presidential election, but not a municipal one? Working with one’s neighbors to solve a problem? Attending a public hearing? Donating to or volunteering with a political campaign, or working with a nonprofit organization to solve a civic problem (a metric used in state-level Civic Health surveys)? Furthermore, in each of these cases, how do we assess the adequacy of engagement? Should voting and other political participation “count” more than donating to a cause or doing volunteer work for one’s church? Should the amount of the donation or the duration of the volunteer effort factor into the evaluation? What “grade” is to be deemed sufficient? What about clearly uninformed or destructive participation—say, membership in the Ku Klux Klan or in a “volunteer” militia patrolling the border?

As noted above, research does support the contention that civic knowledge and civic engagement are highly correlated (Delli Caprini et al., 1996; Milner, 2002), but the relative contribution of each is speculative, as is the question of causation. Are more knowledgeable citizens more likely to become civically involved, or does civic involvement lead to a more complete and accurate understanding of the way in which our democracy works (or doesn’t)?

If there is no agreement on the nature and extent of the deficit, there is even less on its causes. Critics of public education accuse schools and teachers of poor performance, of which civics is only a part; defenders point to the current emphasis on STEM subjects, No Child Left Behind, and the increasing conflation of education with job training as major reasons schools have little time for civics. Civics and social studies teachers note that the current emphasis on high-stakes testing inevitably means that teachers and students alike will emphasize those areas of the curriculum that are subject to testing; they point out that civics is rarely one of the areas tested. Sociologists and political scientists point to socio-economic factors, and note that the gaps in civic knowledge between poor children and those from more affluent families are similar to the gaps that characterize disparate performance levels in other subjects (Diemer, 2012).

Still other observers focus on the fragmentation of contemporary media, and its tendency to feed a popular culture that emphasizes celebrities and sports figures, rewards sensationalism, and increasingly lacks the resources to provide serious investigative reporting on matters of public concern. Recent research by the Jonathan M. Tisch College of Citizenship and Public Service (home to the Center for Information and Research on Civic Learning and Engagement, a pre-eminent resource for research on civic learning) has focused on the question whether and how the news media might impact broad democratic practices. Other explanations for low civic engagement include economic factors; observers note that low-income Americans are working increasing hours just to put food on their tables, and lack the time to participate in civic and political matters. Although such time constraints are undeniably real, however, it remains true that few of those Americans are motivated to devote what leisure time they do have to civic enterprises.

Further complicating the situation is the fact that all of these explanations, and many others that have been proposed, are interrelated. Economic inequality sends children to schools of very uneven quality. Our inability to agree on the content or methodology or institutional arrangements leading to effective public education produces very different results even in schools serving so-called “privileged” communities. The lack of a sound educational grounding drives media choices, and media outlets competing for “eyeballs” offer entertainment and (often) propaganda intended to appeal to increasingly segmented audiences—a problem exacerbated by the increasing use of sophisticated algorithms to deliver “relevant” information over the Internet (Pariser, 2011) and by America’s persistent thread of anti-intellectualism.

Wicked problems have multiple stakeholders representing multiple and frequently inconsistent values. This is certainly the case with civic literacy; stakeholders include the aforementioned public school teachers and administrators, education reform activists, lawyers, political pundits, elected officials and public managers at various governmental levels, journalists, and citizens working for particular policy outcomes or for redress of perceived grievances. Many of these stakeholders represent disciplines having specialized languages and professional terminologies, complicating communication. Further, value diversity means that solutions—or at least improvements—acceptable to some stakeholders will be unacceptable to others. In the Oklahoma example cited previously, stakeholders presumably agreed that “American Exceptionalism” should be taught, but they disagreed profoundly on its definition and importance.

Furthermore, as Rittel and Webber (1973) noted, professionals of various fields laying claim to superior knowledge or expertise can expect considerable resistance from members of the general public, or laity, who tend to be resentful of such claims and suspicious of “elites,” especially academic ones. This heterogeneity of stakeholders is further complicated by the structural relationships among them.

Civic literacy deficits exhibit three other elements of “wickedness”: there are no “stopping rules,” because the problem of a civically illiterate population cannot be definitively solved; solutions are unlikely to be true or false, only better or worse; and there is no immediate or ultimate test of a solution.

What to do

With “tame” problems, linear processes leading to recognizable solutions can be employed: one defines the problem, identifies potential solutions together with their strengths and weaknesses, and chooses the remedy that seems best. With efforts to improve civic literacy, however, proceeding in that fashion leads to what has been called “analysis paralysis,” repeated studies that simply confirm the widespread lack of civic knowledge. Stakeholders can’t act to address the problem until there is more information, but that information isn’t available until someone acts. In the case of civic literacy, analysis paralysis has resulted in a copious literature confirming the existence of a deficit and a less robust literature offering theoretical approaches to remedying that deficit, but considerably less research on actual programmatic efforts.

If civic literacy is a wicked problem, we have no choice but to act, to try different solutions that will help us to better understand the nature of the problem and evaluate the results of efforts to address it. This is not a risk-free strategy; as Ritchey (2005) has written, “every implemented solution is consequential. It leaves “traces” that cannot be undone…And every attempt to reverse a decision or correct for undesired consequences poses yet another set of wicked problems.” This is self-evidently true of any individual program or attempted intervention. However, a new approach to content delivery in a classroom, a new state standard for civics instruction, an effort to improve public understanding of local government or similar efforts can be immensely instructive—whether it succeeds or fails. It is here, I argue, that civic literacy differs from many other wicked problems and (arguably) becomes less wicked. Rittel (1973) notes that “One cannot build a freeway to see if it works.” But civic education is not a freeway; nor is it the design of a new car (an example used by Conklin). Proposed solutions need not exclude other potential solutions, need not require the expenditure of massive amounts of money. Pilot programs can be conceived and their results evaluated; those with promise can be adapted or replicated.

A central insight of Rittel and Webber (1973) was that substantially wicked problems can only be approached through an iterative process that sheds needed light on the nature of the problem at the same time as it is trying to improve the situation. The nature of the civic deficit allows for the use of a wide variety of approaches employing such a process.

In order to engage in this trial and error methodology, however, we must address the elements of wickedness that have led to the current analysis paralysis. At a minimum, stakeholders must work together to create, first, a shared and much more widespread and public understanding of the problem and its consequences; and second, a shared commitment to the broad goal of improving civic knowledge, all while recognizing the partial and tentative nature of that understanding and the high probability that the goalposts will move more than once.

Rittel and Webber’s (1973) original identification of wicked problems, and their enumeration of the thorny challenges such problems represent, was not intended to dissuade us from trying to solve social problems. It was not a counsel of surrender. It was an analytic tool that distinguished between different kinds of challenges, confirmed the contours and difficulties of certain of those challenges, and warned us away from obvious pitfalls.

If the literature on wicked problems confirms anything, it is that most social problems are wicked to a greater or lesser extent. Recognizing that fact does nor relieve us of the obligation to work for their (more-or-less) satisfactory resolution.

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Comments

Does Ignorance Matter?

Does Ignorance Matter? The Relative Importance of Civic Knowledge and                            the Human Tendency to Engage in Motivated Reasoning

Aaron Dusso, Assistant Professor Political Science, IUPUI

Sheila Suess Kennedy, Professor, Law and Public Policy, IUPUI

Introduction

The importance of civic literacy is, and has long been, an axiom of democratic theory; a “generally-accepted belief that civic knowledge is an important foundation of democratic self-government” (McCabe and Kennedy 2014). Americans generally agree that a basic understanding of the structure and philosophy of government is a necessary precondition to productive political engagement or policy debate; a mutual understanding of the constitutional framework; agreement on the meaning of basic legal, economic and scientific terminology is necessary if there is to be common ground for discussion.

Former U.S. Representative Lee Hamilton summarized this consensus, writing in 2003

The truth is, for our democracy to work, it needs not just an engaged citizenry, but an informed one. We’ve known this since the nation’s earliest days. The creators of the Massachusetts Constitution of 1780 thought the notion important enough to enshrine it in the state’s founding document: “Wisdom and knowledge, as well as virtue, diffused generally among the body of the people,” they wrote, are “necessary for the preservation of rights and liberties.”

It is this broad agreement on the importance of accurate, basic civic information that raises widespread concern about current, dangerously low levels of civic knowledge. A copious literature confirms the existence of a civic deficit: Only 36% of American citizens can correctly name the three branches of government (Annenberg Public Policy Center Judicial Survey 2007); Thirty-six percent of twelfth-grade students fail to achieve a basic level of civic knowledge (National Center for Education Statistics 2011); only 35.5% of American teenagers can correctly identify “We the People” as the first three words of the U.S. Constitution (National Constitution Center Survey 1998). The National Assessment of Education Progress (NAEP) 2010 report on civic competencies found that barely a quarter of the country’s 4th, 8th and 12th graders could be considered proficient in civics. (National Center for Education Statistics 2011). Numerous other studies confirm the extent of our civic deficit (Bennett 1995; Caplan 2008; Converse 2000; Delli Carpini and Keeter 1991, 1996; Shaker 2012).

Given the depth of the empirical literature demonstrating a broad public deficit of accurate civic information, a growing number of researchers and educators are working to identify best practices and to improve civics education in the schools. Peter Levine at the Center for Information and Research on Civic Learning and Civic Engagement (CIRCLE), Ted McConnell, Director of the National Council for the Social Studies Campaign for the Civic Mission of the Schools, Shawn Healy, Chair of Illinois’ Civic Mission Coalition , Joseph Kahne, Director of Civic Engagement Research, Diana Hess of the Spencer Foundation, and the Center for Civic Literacy at IUPUI are just a few of the scholarly efforts currently underway. They are joined by programmatic endeavors: former Supreme Court Justice Sandra Day O’Connor’s ICivics, the Bar Foundation’s sponsorship of the Center for Civic Education’s “We the People” curriculum and competition and several others.

These efforts to raise awareness of the issue and to identify measures that may ameliorate it are important. At the very least, a shared understanding of basic social and political institutions is necessary for communication to occur— a common reality, after all, is much like a common language. If we are looking to improvements in civic knowledge to reverse the political polarization that has paralyzed so much of our political system, however, the emergence of new lines of research in political psychology suggests we may well be disappointed.

Political Polarization

Theoretically, in order to have a productive argument, the participants need to have at least a basic agreement on the definitions of the terms being employed and the facts involved. The recent debates about the Affordable Care Act—aka “Obamacare”—are a case in point. Citizens debating that legislation may have very different opinions about the wisdom of the policy choices involved, but decisions to repeal, implement or amend the Act should be based upon agreement about what it actually says and does. If opposition to the policy is based upon “death panels” that don’t exist, or its defense is based upon an insistence that the individual mandate isn’t government coercion, the likelihood of reasoned discussion—let alone agreement on policy changes—disappears.

A similar example would be the ongoing battles over religion in the nation’s schools. There are genuine arguments to be made about the proper application of the Establishment Clause in the context of public education. But reasoned disputes require people who recognize that the First Amendment’s religion clauses require government neutrality in matters of religious exercise.

We certainly agree with those who advocate for the importance of a shared vocabulary and a conceptual common ground to facilitate legitimate and productive political debate and discourse. A common civic language—an agreement on the basic nature of our shared political reality—is necessary, but it may not be sufficient. An examination of two robust literatures, political science research on political polarization and partisan sorting, and political psychology research on motivated reasoning strongly suggests that efforts to calm the political waters by supplying accurate information, while necessary, may be inadequate to the task.

A comprehensive review of the literature on political polarization was conducted by Morris P. Fiorina and Samuel J. Abrams in 2008. Fiorina and Abrams surveyed the existing research, testing the “polarization narrative” that began in the early 1990s, when Pat Buchanan famously “declared a culture war for the soul of America in his speech at the 1992 Republican convention” (Fiorina and Abrams 2008). They noted the emergence of the “notorious red-blue map” after the 2000 election, and the acceptance of the polarization narrative by commentators and pundits (one of whom went so far as to compare Republicans and Democrats to Sunnis and Shias). Although the authors noted their agreement with the scholarly consensus that elites and Congress had, indeed, polarized, their review of the then available research convinced them that the situation for the public at large reflected partisan sorting, rather than polarization.

“The political positions of Americans had not become more polarized between the early 1970s and the early 2000s. Importantly, however, within the larger population the parties in the electorate had become more distinct. This change was a product of two other senses of polarization that the DiMaggio group identified: constraint (“the more closely associated different social attitudes become..”) and consolidation (“…the greater the extent to which social attitudes become correlated with salient individual characteristics or identities.”) (DiMaggio et al. 1996, p.693) In the last few decades of the twentieth century, inter-issue correlations were increasing, and partisans were becoming more closely associated with one or the other of the increasingly interconnected clusters” (Fiorina and Abrams 2008).

Whether this differentiation is called sorting or polarization, the authors agreed with other observers that it had occurred and appeared to be continuing. And they conceded that other scholars, notably Abramowitz and Saunders (2008) “believe that the process of partisan sorting has proceeded so far that it is accurate to speak of a polarized America.”

In the wake of Fiorina and Abrams’ influential and much-cited review, a number of other researchers have studied the phenomenon, with most agreeing that the partisan divide is increasing, especially among elites and in Congress (see, for example, Krasa and Polborn 2012).

To further complicate the search for common ground and collaborative policymaking, several political psychologists have found that partisans who are often quite well informed will reject “negatively valenced” information if that information is in conflict with their preferred worldview (Redlawsk, Civettini and Emmerson 2010), and still others have concluded that personality traits can predict a “considerable array of human behavioral patterns” (Ha, Kim and Jo 2013), including political preferences and behaviors. Indeed, Alford, Funk and Hibbing (2005) and Fowler, Baker and Dawes (2008), among others, have concluded that certain political behaviors and attitudes are genetically influenced and/or heritable. Personality traits—extraversion, agreeableness, conscientiousness, emotional stability and openness to experience, sometimes referred to as the “Big Five,” have demonstrable effects upon political behavior. (Ha, Kim and Jo 2013).

Polarization, Political Sophistication and Motivated Reasoning

Motivated reasoning research poses challenges to widely-held beliefs about the way in which individuals search for information. Theoretically, when people are engaged in learning about the world around them, the primary goal is accuracy. The good citizen watches the news, reads newspapers or blogs as part of an effort to gain an accurate understanding of the particular topic under investigation. Unfortunately, as emerging research underscores, this is not how people actually go about gathering information, if they choose to gather it at all. The reality is that people are motivated reasoners (Kunda 1987, 1990).

The concept of motivated reasoning is built on decades of research documenting the biased cognitive processes by which individuals gather and understand new information. It is an unconscious process that occurs through selective perception of reality. Once people have developed a worldview–an idea about how something works, or what they like and do not like– they are extremely resistant to information that would require them to change that worldview.

Research confirms that most people do not engage in a wide search for information in order to understand a subject from various perspectives. Instead, they engage in selective exposure (Lodge, Taber, and Galonsky 1999; Mutz and Martin 2001; Sweeney and Gruber 1984), which means that they seek out information that will confirm what they already know (or think they know) and avoid information sources that might challenge their beliefs. While it may be difficult to avoid all contrary information, encountering contradictory facts will not usually require the individual to change or adapt a preexisting framework; when people are faced with a variety of information, some that is confirmatory and some not, they simply ignore or actively argue against the evidence they don’t like, while uncritically accepting the data seen as confirmatory (Ditto and Lopez 1992; Lavine, Borgida, and Sullivan 2000; Taber and Lodge 2006). Furthermore, when faced with ambiguous information, people do not spend time learning more about the topic; instead, they interpret the ambiguous information so that it is consistent with their current beliefs (Fazio and Williams 1986; Lord, Ross and Lepper 1979; Vidmar and Rokeach 1974).

The consequences of motivated reasoning for politics can be quite troubling. This is especially the case when we consider its effects on a political system in which political polarization is increasing both within elites and the general public (Abramowitz 2010; Bishop 2008; Theriault 2008). As we have seen, the combination of motivated reasoning and increased partisanship leads to more deeply entrenched beliefs and a corresponding increase in unwillingness to compromise as partisans build self-serving, motivated realities. Barker and Carman’s (2012) recent work documents how different the realities are for citizens in Red versus Blue states, and Levendusky (2009) demonstrates how the increased sorting of average citizens into partisan camps has produced more polarized emotional responses to the parties. Politics thus becomes an “us versus them” competition. Taber, Cann, and Kucsova (2009) also find strong support for the polarizing effect of biased information processing (see also Slothuus and de Vreese 2010).

Indeed, the simple act of counting ballots can be affected by motived reasoning when the counting instructions are vague or ambiguous. In such situations, individuals fill in the gaps in a self-serving, highly partisan way (Kopko et al. 2011). Finally, Cohen (2003) shows through a serious of experiments that “even under conditions of effortful processing, attitudes toward a social policy depended almost exclusively upon the stated positons of one’s party.” And to top it off, “…participants denied having been influenced by their political group, although they believed that other individuals, especially their ideological adversaries, would be so influenced” (p. 808). Arguably, this kind of myopic adoption of the positions of one’s party is not what the Founding Fathers had in mind.

Education is often proposed as the solution to the problem of political ignorance (Putnam 2000); it is thus reasonable to consider whether it can also solve the problem of motivated reasoning. Unfortunately, rather than moderating partisanship, political knowledge is often connected to an increase in polarization. Education has certainly been shown to be a good predictor of political knowledge (Delli Carpini and Keeter 1996; Price and Zaller 1993), and it is equally demonstrable that politically knowledgeable citizens are those most likely to acquire political information and most able to incorporate it into their existing knowledge framework (Zaller 1992). A recent study by Gillion, Ladd, and Meredith (2013) showed that the gender gap in voting occurred first among the highly educated because they were the first to be aware of elite polarization. Claassen and Highton (2009) find the same dynamic. Polarization among party elites leads those individuals who are the most politically aware to follow suit. In a similar vein, Federico and Hunt (2013) show that individuals who are highly knowledgeable and heavily invested in politics are more likely to approach politics in an ideological fashion, and more likely to exhibit a polarized response to politics (see also Abramowitz 2010; Federico 2007; Judd and Krosnick 1989; Sidanius and Lau 1989; Zaller 2004).

The dilemma posed by what we now know about motivated reasoning is that it occurs no matter how educated or sophisticated the individual. In his examination of partisan sorting, Levendusky (2009) shows that the highly knowledgeable are just as likely to change their ideology to match their partisanship as the politically unsophisticated. Political theorists might hope that the politically sophisticated would privilege policy positions over their devotion to the correct “team,” but this is apparently not the case. In other somewhat disheartening research, Hartman and Newmark (2012) examined the motivated reasoning behind the belief that President Obama is a Muslim. It is not a shock to learn that this belief is stronger among Republicans than Democrats, but the fact that political sophistication does not appear to attenuate it is distressing.

To summarize, there is strong evidence indicating that political sophistication—rather than moderating ideological commitments—actually contributes to partisan polarization. We argue that this strengthening of the connection of the most highly engaged to a particular party is then reinforced through selective perception. This leaves the politically sophisticated open to significant ideological inconsistency. Ever since the early works of Converse (1964, 2000), it has been understood that the phenomenon of ideological thinking is not occurring in the mass public; it is instead a characteristic of a relatively small percentage of the most politically engaged Americans. But if even those few knowledgeable thinkers are susceptible to motivated blindness, then the prospects for a rational debate are rather dim.

Connecting Political Sophistication to Polarization—Data and Methods

In order to examine the effect of political sophistication and motivated reasoning on polarization, we conducted a national survey measuring partisanship, ideology, and political knowledge, along with specific questions about same-sex marriage. This was an online survey designed and hosted using Qualtrics online survey software. Survey Sampling International (SSI) was then contracted to provide over 2300 respondents. SSI maintains national online panels of respondents; it recruits participants from across the web using numerous methods, which gives them the ability to reach nearly anyone who uses the Internet.

For our survey, a quota method was used in order to match the survey’s demographic and gender distribution to that of the overall United States. Thus, this is not a representative sample of the U.S. population. However, since we were not attempting to estimate some characteristic of the U.S. population (for example, the percentage of the population who voted in the 2012 presidential election) that does not affect our results. We are interested in understanding the connection between cognitive processes and political beliefs. We are unaware of any variable that is correlated with participation in one of SSI’s panels and these cognitive processes that, if present, could bias these results. Furthermore, we control for numerous demographic and political variables, which further alleviates any concern about bias in the sample.

We produce two models. The first is designed to explain the source of the strength of respondents’ party identification. The survey contained standard questions designed to identify respondents’ partisanship following the method used in each American National Election Studies (ANES) survey.[1] This produces a seven-point scale ranging from strong Democrats on the left to strong Republicans on the right. Since we are interested in understanding the causes of polarization, we are more concerned with what drives individuals to the poles of these scales than what causes them choose one side or the other. Therefore, we fold this scale so that it ranges from independent (coded 0), leaning/weak partisan (coded 1), partisan (coded 2), and strong partisan (coded 3), resulting in a scale measuring respondents’ strength of partisan attachment (e.g., Dolan and Holbrook 2001).

We then include measures of political knowledge, education, and their interaction as key predictors of partisan strength. Political knowledge is measured on a nine-point scale and based on respondents’ ability to answer eight factual questions (Zaller 1992). These questions are copied directly from ANES and ask respondents to identify (1) Joe Biden, (2) John Boehner, (3) John Roberts, and (4) David Cameron; and whether they know which party controls the (5) House and the (6) Senate, (7) which party is more conservative, and (8) what the current unemployment rate is. Education is measured on a seven-point scale that indicates the highest level of educational attainment by the respondent.

Finally, the model also includes several standard control variables: Gender (coded 1 if male, 0 if female), race/ethnicity (1 if white, 0 otherwise), age (coded in years), household income (coded on a 10 point scale), and religious fundamentalism. This last variable is based on a General Social Survey question tapping respondents’ beliefs about the Bible as follows:

Which of these statements comes closest to describing your feelings about the Bible?

  • The Bible is the actual word of God and is to be taken literally, word for word.
  • The Bible is the inspired word of God but not everything in it should be taken literally, word for word.
  • The Bible is an ancient book of fables, legends, history, and moral precepts recorded by men.

This produces a three-point scale ranging from most (coded 0) to least (coded 2) religious fundamentalist.

The second model predicts a contradiction in the policy beliefs among respondents. There is ample scholarship suggesting that policy positions are the product of a process of motivated reasoning. Our survey asks two questions about religious freedom and same-sex marriage: 1) should same-sex couples be allowed to marry, or do you think they should not be allowed to marry? And 2) Do you think the federal or state governments should make laws regarding who religious organizations can and cannot marry? If one answers “no” to the second question, one should then not answer that same-sex couples should not be allowed to marry because that would be making a law restricting a religious organization’s marriage policies. This is an instance of individuals contradicting themselves on policy grounds. However, it may not necessarily be a contradiction for conservative Republicans who hold strong beliefs about smaller government and the legality of same-sex marriage. An individual engaged in motivated reasoning should be expected to make such a contradiction, with the strongest partisans and ideologues being the most susceptible. Thus, the comparison of respondents’ answers to these two questions produces our measure of policy contradiction.

The key independent variables in this case are partisanship and ideology. The more conservative and the more Republican one is, the more likely s/he is to answer these questions in a manner consistent with being a conservative Republican rather than in an ideologically consistent manner. The key to motivated reasoning is that partisanship and ideology interact to produce an effect that moves people away from a purely rational thought process by which one either does not accept government intervention in religious choices and thus accepts religious organizations decision to marry same-sex couples, or one is happy with government intervention in religious choices and thus okay with banning same-sex marriage. Simultaneously, disliking government restrictions on religion and liking government banning of same-sex marriage is the product of current partisan and ideological thinking. Those who engage in it are motivated to do so in order to protect their preferred set of beliefs through a form of self-affirmation (Steele 1988). Kahan (2013) finds strong evidence for this. His research shows that individuals are motivated to engage in information processing that reinforces their connection to important ideological groups. In this case a conservative self-identity. Following this line of reasoning, our supposition is that this effect should be most pronounced among the most extreme partisans and ideologues.

We measure partisanship as a set of dummy variables. (1) Republican, coded 1 if one identifies as Republican and 0 otherwise. (2) Democrat, coded 1 if one identifies as Democrat and 0 otherwise; and (3) Independent, coded 2 if one is independent and 0 otherwise. The Democrat variable is then dropped and becomes the comparison group for Republican and Independent when interpreting the results.[2] Ideology is measured on a 7 point scale ranging from 0 (strong liberal) to 6 (strong conservative), with a score of 3 indicating independent or none ideological. We then interact ideology with the Republican dummy variable in order to test for the conditional effect of each on the dependent variable. Finally, the model also includes the same control variables as the model predicting partisan strength above.

****Table 1 about here****

Table 1 presents results after estimation of the two models. The results of an Ordinary Least Squares (OLS) regression model predicting strength of party identification are presented in the first column, while the results of a logit model predicting the likelihood of holding contradictory beliefs about religious freedom and same-sex marriage are presented in column two. Focusing first on the model predicting partisan strength, one can see that political knowledge, education, and their interaction are all highly statistically significant. This means that the effect of political knowledge on strength of partisanship is conditional on the value of education and vice versa. The negative sign indicates that the effect of one variable diminishes as the value of the other goes up.

****Figure 1 about here****

Interaction effects are notoriously difficult to substantively interpret from an output table, thus Figure 1 presents a graphical look at how the effect of political knowledge changes as the highest level of educational attainment moves from having a high school diploma, to a college degree, to a graduate degree. Figure 1 makes clear that the effect of increasing political knowledge is strongest for those having only finished high school. Moving from a political knowledge score of 2 to a score of 7 is associated with an increase in partisan strength of about 3/4ths of a point. That is an 18 percent jump in one’s partisan leanings. The same type of gain in political knowledge for someone with a graduate degree shows virtually no movement in the strength of their partisanship. Interestingly, at low levels of political knowledge people with a high school diploma are the least partisan, while at the highest levels of political knowledge they are the most partisan. Therefore, it would seem that gaining political knowledge without education has a polarizing effect on people. This is a disturbing result for those advocating for civic learning outside of formal education. It would appear that this may simply exacerbate polarization.

Returning to Table 1, the logit model estimating policy preference contradiction includes an interaction between ideology and Republican identification. The interaction and ideology variables reach significance, but the Republican variable does not. This is not particularly surprising since the substantive meaning of that variable is the effect of being a Republican when compared to a Democrat when ideology equals zero, which represents strong liberalism. There are likely very few strongly liberal Republicans and the data cannot tell the difference between them and Democrats. The significant interaction indicates, once again, that the effect of partisanship is dependent on ideology and vice versa. Before looking at Figure 2, which helps clarify the interactive effect of ideology and partisanship, it should be noted that political knowledge and education fail to reach significance. Thus, there is no evidence in this data that political sophistication, as measured by either education or political knowledge, helps individuals avoid contradicting themselves. This is what one would expect when the driving force behind policy preferences is not rational calculation, but motivated reasoning to answer questions in a way that is consistent with one’s partisan and ideological positions.

****Figure 2 about here****

Figure 2 presents the predictive margins of the conditional effect of partisanship and ideology on the probability of contradicting oneself. As can be seen, on the left-hand side of the scale (scores 0-2), which correspond to liberal ideological leanings, there appears to be no discernable difference between Republicans and Democrats. But when one moves to the right-hand side (scores 4-6), which corresponds to increasingly conservative leanings, Republicans and Democrats respond much differently. To be sure, both see an increase in the probability of contradicting themselves, but the slope for Republicans is much steeper. For a strong conservative (score of 6), the probability of contradiction is about 23 percent greater if one is a Republican than a Democrat. Indeed, simply moving from a strong liberal to a strong conservative increases the probability of contradiction for Republicans by nearly 60 percent and about 35 percent for Democrats. This is the effect of motivated reasoning.

Is Civic Literacy Irrelevant?

If motivated reasoning “trumps” accurate information, will our politics inevitably be ideological and polarized? Is the effort to provide credible, evidence-based information a fools’ errand? Not necessarily. Redlawsk, Civettini and Emmerson (2010) explored just this question. The authors did not challenge the research on motivated reasoning, but they did test the thesis that a “tipping point” would be reached—that despite the tendency of motivated reasoners to ignore evidence inconsistent with their preferred beliefs (here, a candidate they viewed positively)—given enough negative information, attitude change would occur.

“The question here is whether there is a point at which the positive affect motivated reasoners try to maintain is overwhelmed by a growing threat to the existing evaluation as more incongruent information is encountered, and thus leading to more accurate updating” (Redlawsk, et al. 2010).

The authors noted that a small amount of evidence contradicting the motivated reasoner’s initial positive impression of a candidate had the effect of confirming that impression; that is, a moderate amount of incongruent information simply resulted in the individual clinging more stubbornly to his or her original beliefs. But at some point, mounting evidence inconsistent with those beliefs did, in fact, generate a change of opinion.

There is also hope of change if individuals are forced to pay attention to new information. Boudreau and MacKenzie (2013) looked at the effect of party cues and policy information in the context of support for ballot initiatives. They find that citizens do indeed privilege policy information over party cues when the policy information gives them a compelling reason to do so. Bullock (2011) found similar results. He concludes, “These results warrant a measure of optimism about partisans’ ability to hold meaningful policy views. To be sure, partisans are rarely exposed to more than meager descriptions of policy. But when they are, the results suggest that they can arrive at policy views that are independent of and even contrary to the views of their party leaders” (p. 512). Of course, these conclusions were the result of controlled experiments in which the audience was captive. The observed effect requires that citizens both receive the compelling information and take the time to understand it.

In another line of research, Binning et al. (2010) documented some success in reducing partisanship by having individuals affirm their self-integrity prior to watching the 2008 presidential debates. They gave randomly selected participants an opportunity to identify values important to them and asking them to write about a time when an important value affected them. The premise of self-affirmation theory is that people want to see themselves as good, moral and efficacious (Steele 1998; Sherman and Cohen 2006). These feelings often get intertwined with group identity. In politics, group identity means partisanship. When individuals reaffirmed their integrity, it lessened the connection to party identification and thus freed them to be more judicious when evaluating the presidential candidates.

Although this research is encouraging, it remains to be seen whether a tipping point exists at which ideology concedes to evidence. Learning that a favored candidate is not as admirable as once thought is one thing; accepting evolution or climate change and adjusting one’s literalist approach to religion accordingly is quite another. If the research tells us anything, it is that good information and civic literacy are necessary, but insufficient to rid us of polarization and a highly selective approach to evidence. It would seem that ignorance isn’t the only enemy of reason and political compromise.

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Table 1

Predicting Strength of Party Identification and Policy Preference Contradiction

Dependent Variable

Strength of                              Preference

Variable                                               Party ID                                  Contradiction

Political Knowledge                            0.232***                                 0.050

(0.026)                                                (0.031)

Education                                            0.207***                                 -0.011

(0.035)                                                (0.046)

Pol. Know. x Education                      -0.037***

(0.007)

Ideology                                              -0.064***                                0.420***

(0.014)                                                (0.065)

Republican                                                                                          -0.564

(0.432)

Ideology x Republican                                                                        0.284**

(0.110)

Independent                                                                                        0.486*

(0.196)

Control Variables

Male                                                    -0.150***                                0.200

(0.043)                                                (0.126)

White                                                  -0.076                                      -0.121

(0.045)                                                (0.137)

Age                                                      0.005***                                 0.018***

(0.001)                                                (0.004)

Household Income                              0.002                                       -0.043

(0.008)                                                (0.022)

Religious Fundamentalism                  -0.220***                                -0.800***

(0.030)                                                (0.092)

Constant                                             1.255***                                 -2.433***

(0.145)                                                (0.350)

N                                                         2237                                        2244

R2                                                        0.10

Log pseudolikelihood                                                                          -912.18

Notes: Strength of Party ID estimated using OLS. (Since this is a short scale running form 0-3, an ordered logit model was also estimated. The substantive results were identical and therefore the OLS results are presented here for easy of interpretation.) The Preference Contradiction model is estimated using logit.

*= p < .05, ** = p < .01, *** = p < .001, two-tailed.

Figure 1

Marginal Effect of Political Knowledge and Education on Strength of Party Identification

Figure 2

Marginal Effect of Ideology and Partisanship on the Probability of Holding Contradictory Policy Preferences

[1] Whenever possible, we simply copied the long established question wording used by either the American National Election Studies or General Social Survey. This provides for easy comparability and avoids the need to reestablish the credibility of survey question wording, since these are well established and understood survey instruments.

[2] See Wooldridge (2012) for an explanation as to why one of these variables needs to be dropped.

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