CONFERENCE REPORT The Governing Crisis: Exploring Solutions Brennan Center for Justice at New York University School of Law ABOUT THE BRENNAN CENTER FOR JUSTICE The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that seeks to improve our systems of democracy and justice. We work to hold our political institutions and laws accountable to the twin American ideals of democracy and equal justice for all. The Center’s work ranges from voting rights to campaign finance reform, from racial justice in criminal law to Constitutional protection in the fight against terrorism. A singular institution — part think tank, part public interest law firm, part advocacy group, part communications hub — the Brennan Center seeks meaningful, measurable change in the systems by which our nation is governed. ABOUT THE BRENNAN CENTER’S PUBLICATIONS Red cover | Research reports offer in-depth empirical findings. Blue cover | Policy proposals offer innovative, concrete reform solutions. White cover | White papers offer a compelling analysis of a pressing legal or policy issue. © 2014. This paper is covered by the Creative Commons “Attribution-No Derivs-NonCommercial” license (see http://cre- ativecommons.org). It may be reproduced in its entirety as long as the Brennan Center for Justice at NYU School of Law is credited, a link to the Center’s web page is provided, and no charge is imposed. The paper may not be reproduced in part or in altered form, or if a fee is charged, without the Center’s permission. Please let the Center know if you reprint. ACKNOWLEDGEMENTS The Brennan Center is tremendously grateful to the William and Flora Hewlett Foundation for supporting this convening — and especially Larry Kramer and Daniel Stid for their critical partnership, interest, and enthusiasm. We also wish to thank those who generously support the Brennan Center’s work to revitalize our democracy: The Bauman Foundation, Democracy Alliance partners, Ford Foundation, Irving Harris Foundation, The Joyce Foundation, The JPB Foundation, The Kohlberg Foundation, The John D. and Catherine T. MacArthur Foundation, Mertz Gilmore Foundation, Open Society Foundations, Overbrook Foundation, Piper Fund, Rockefeller Brothers Fund, Rockefeller Family Fund, Jennifer and Jonathan Allan Soros Foundation, Wallace Global Fund, and the WhyNot Initiative. We are especially grateful to Mark Schmitt for his vision and insight in shaping the program. This summary document would not have been possible without the leadership of Michael Waldman and John Kowal, and the effort of many Brennan Center colleagues, including Alicia Bannon, Jennifer Clark, Johanna Kalb, Lawrence Norden, Erik Opsal, Jeanine Plant-Chirlin, Desiree Ramos Reiner, Jafreen Uddin, Daniel Weiner, and Wendy Weiser. TABLE OF CONTENTS Introduction 1 Statement of Purpose 3 Opening Remarks 4 The Government Shutdown: A Case Study 8 Governing Structures and Congressional Reform 12 Political Money and Economic Inequality 15 Opportunities for Bipartisan Democracy Reform 19 Keynote Address 21 Cultural Polarization 24 Political Parties and Candidate Selection 25 Geographic Polarization and the Role of Redistricting 27 Political Strategies 29 Appendices A: Participants 33 B: Agenda 38 INTRODUCTION On February 12-13, 2014 the Brennan Center for Different communities brought preconceptions — Justice convened a group of 80 scholars, advocates, and had those preconceptions challenged. Social journalists, foundation leaders and philanthropists justice-oriented groups and funders grappled with at NYU School of Law for a series of discussions on the “dysfunction” frame. Reform ideas must be government dysfunction. The conference was conceived assessed not just through the lens of “democracy” at the height of worry over the government shutdown but also “governability.” If government and the and latest debt ceiling debacle. It soon gravitated toward political system are not rendered more functional, larger, longer-term ambitions. The Center — and on a basic level, no underlying policy changes are organizations like ours — must grapple with governing possible. Funders and scholars who focus, especially, crisis that besets the country, a task that will require new on “polarization” as the ill to be addressed grappled thinking and focused effort. Our goal for the two days: with the need to embrace structural reforms, to facilitate discussions that moved beyond arguments and not just changes in norms and practices. about causes of the current state of dysfunction and, rather, begin to identify potential viable solutions. • All grappled with a fundamental challenge for funders, nonprofit groups, scholars and journalists: Among the repeated themes and lessons from the two how to address intrinsically political questions day gathering: through a necessarily nonpartisan lens. We must beware the fallacy of technocratic solutions. • Across the political spectrum, participants shared Today’s problems have deep political roots — the a sense of urgency — even alarm — over the solutions must be inevitably, intrinsically political. collapse of effective government. This is not just It is naive to expect solutions to come without messy governance as usual. Something new, and wider public engagement and political conflict. disturbing, seemed evident to most participants. • Repeatedly, participants asked whether • Cures for dysfunction are structural as well as dysfunction is a genuine crisis, or merely the cultural. Reformers should avoid the fallacy most recent swing of a cyclical pattern. Perhaps of assuming that tweaking rules or tightening it’s always been this bad. Or perhaps it will work procedures can overcome deep-seated divisions. itself out, as moderates battle extremists and self- At the same time, merely wishing for partisans interest drives leaders to the bargaining table. to cast aside their animosities is a hope never Or perhaps, as too often seems likely, this really likely to be achieved. Recognizing cultural and does reflect a new, worrisome and dangerous political trends, the participants gravitated degradation of America’s democratic experiment. toward reforms that could steer political actors toward more productive governance. We sought • One dividing line: Some participants believed to avoid false choices, and largely succeeded. the governmental breakdown on display is best understood as a consequence of widening • The conference produced some surprises. In economic inequality and spreading stagnation. particular, some stressed the importance of party They see the most worrisome polarization as top- leadership ... and skepticism about openness and down, not left-right. Given these broad trends, transparency as an effective mode for governance. they suggested, it would be a surprise if the political THE GOVERNING CRISIS: EXploring Solutions | 1 system worked better than it did. Others saw the challenges of the political system (e.g., the ability of wealthy interests to stall or steer policy change) as a cause of economic malaise. In any case, they argued, political reform is a necessary precondition to policies that could help spur economic revival. In all, we explored seven topics — the summary of each panel discussion is described as a section in this report. In addition, we heard an evening keynote and a funder- led and focused summary at the close of the event. Sessions were held in a “discussant-style” format to facilitate participation from the entire audience, along with the moderator and panelists. There were a few variations: the session on “Opportunities for Bipartisan Democracy Reform,” featured the co-chairs of the Presidential Commission on Election Administration engaging in a lively moderated dialogue; the panel on “Cultural Polarization” was a Q&A over dinner. The sections that follow each provide a summary of the discussions that ensued, followed by the Brennan Center’s assessment of follow up questions to be explored via research. Recordings of the discussions are available, as well, on the Center’s web site (www.brennancenter. org). Other resources included as appendices with this summary: the event program; bios of the moderators and panelists, and the full list of participants. 2 | BRENNAN CENTER FOR JUSTICE STATEMENT OF PURPOSE In advance of the event we shared the following by periods of progress and action. But there are statement of purpose: strong reasons to believe today’s dilemmas go deeper than in decades. Dysfunction has profound How can we get American government working structural roots. Stronger leadership or a generous again? spirit of compromise will not be enough. Solutions, in the long run, demand systemic change. Consider the past two years: Shutdowns. Debt ceiling debacles. Endless filibusters. A polarized Congress. We see today’s government dysfunction as a confluence Judgeships and executive branch jobs unfilled. of four forces: Trust in government plunging to its lowest level in decades. The spectacle of billionaires sponsoring Partisanship: America’s two major political parties presidential candidates like racehorses. No wonder are now divided along ideological lines, with none the Gallup Poll last fall identified governmental of the overlap that for much of the 20th century dysfunction as the country’s number one concern. created a space for bargaining and consensus. On every dimension, government has failed to find Polarization: Elected legislators, particularly in one pragmatic solutions or respond to fundamental public party, respond to their