Copyright by Jennifer Reynolds McEwan 2012 The Dissertation Committee for Jennifer Reynolds McEwan certifies that this is the approved version of the following dissertation: STRATEGY OF REFORM: COURTS, POLITICS, AND POLICY REFORM IN TEXAS Committee: HW Perry, Supervisor Daniel Brinks Bartholomew Sparrow Sanford Levinson David Ellis Strategy of Reform: Courts, Politics, and Policy Reform in Texas by Jennifer Reynolds McEwan, B.A.; M.A. Dissertation Presented to the Faculty of the Graduate School of The University of Texas at Austin in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy The University of Texas at Austin December 2012 Strategy of Reform: Courts, Politics, and Policy Reform in Texas Jennifer Reynolds McEwan, Ph.D. The University of Texas at Austin, 2012 Supervisor: H.W. Perry When, how, and why do policy makers and reformers use courts and legal procedures to achieve their policy ends? This project explores the relationship of courts to the process of policy reform in Texas. I predict that reformers within this context utilize judicial and quasi- judicial strategies in different ways than the current literature suggests, that is that courts and legislatures are used interdependently to advance a policy goal. This line of inquiry enhances our understanding of the relationship of courts to policy reform as it contemplates reformers utilizing court based reform strategies in ways other than a court ruling in their favor and producing the desired policy end. This study also contemplates courts in the policy making arena as more than just one static institution; rather, court based strategies can and do encompass other quasi-judicial institutions available to iv reformers to advance their policy objectives. Through an in-depth case study analysis of reform in the areas of the scope of practice battle between engineers and architects, transportation infrastructure funding, and voter ID, I find that reformers, constrained by the overall opportunity structures available, choose a set of strategies that utilize multiple venues in ways that strengthen each other, so that their strategies are not just alternative or sequential but interdependent. v Table of Contents Introduction ......................................... 1 Chapter 1: Theoretical Framework: Multi-Venue Strategy for Policy Change ............... 5 Chapter 2: Interest Mobilization and Litigation Strategy ................................ 23 Chapter 3: Institutional Design and the Political Context of Courts ....................... 33 Chapter 4: The Texas Case .......................... 49 Chapter 5: Method .................................. 69 Chapter 6: Building Design: Scope of Practice - Engineers Versus Architects ............ 83 Chapter 7: Transportation Infrastructure .......... 115 Chapter 8: Voter ID ............................... 133 Chapter 9: Conclusions ............................ 150 Bibliography: ..................................... 163 vi INTRODUCTION Politics matters. Certainly much scholarly energy has focused on this simple statement in the field of public law since Dahl’s contention in 1957 that the Supreme Court of the United States is a political institution.1 Dahl goes on to assert: The fact is, then, that the policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States. Consequently it would be most unrealistic to suppose that the Court would, for more than a few years at most, stand against any major alternatives sought by a lawmaking majority.2 This provocative hypothesis has certainly been the subject of much scholarly critique. For the purpose of this project, however, it is a point of departure. If the appointed Court conceived in the vein of the separation of powers doctrine behaves in a manner according to the lawmaking majority, then how might we expect an elected court with the same party affiliation as the lawmaking majority to behave? Moreover, if politics indeed matters to political scientists in our quest for understanding how those in power make policy decisions, does it also matter 1 Dahl, Robert, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law, Vol. 6 (1957). 2Dahl, 1957. 1 to the reformers operating within the system attempting to undertake policy change? Much of the public law literature to date has framed the decision of reformers to utilize a court to advance a policy goal as an “either/or” proposition, meaning a reformer will utilize either the court or the legislature as a venue of reform. Assuming reformers are rational actors, existing theories would predict reformers’ decisions to be constrained by the institutional rules of the game and the venue influenced by where reformers believe they can maximize the likelihood of success. Theories diverge on how the likelihood of success is best calculated and span a structural to behavioral spectrum. However, current theories do not account for a multi-venue approach that incorporates the utilization of institutions in an interdependent manner, that is reformers’ decisions to utilize the court in a way that will stimulate legislative action or the legislature in a way that will impact court proceedings and potentially court based outcomes. Rather than view the court as a standalone venue of reform to advance a policy goal, do reformers utilize judicial and quasi-judicial strategies in conjunction with and synergistic to legislative strategies? Is the business 2 of policy reform indeed more complex in this regard than current theories describe? While the public law literature has traditionally viewed reform strategy with a lens that separates legislative and judicial institutions, it may be that reformers do not necessarily disentangle the two, as progress in one arena could impact progress in the other because the institutions coexist within the same overall structure. I hypothesize, therefore, that reformers utilize both legislative and judicial venues of reform in tandem to advance their specific policy goals. This project seeks to systematically explore the relationship of courts to the process of social policy reform in the Texas. I predict that reformers within this context utilize judicial and quasi-judicial strategies in different ways than the current literature suggests, that is that courts and legislatures are used interdependently to advance a policy goal. By focusing on the external relationship of courts as institutions to other institutions in the political system, including interest groups and reformers, it is my hope that this research will provide a better understanding the relationship of courts to their larger political framework. I am hopeful that this research will contribute to scholarly debate in the 3 public law field and most importantly provide a deeper understanding of the role of courts in the complex and nuanced policy making process. 4 CHAPTER 1 THEORETICAL FRAMEWORK: MULTI-VENUE STRATEGY FOR POLICY CHANGE When, how, and why do policy makers use courts and legal procedures to achieve their desired policy ends? Because of the reactionary nature of courts, reformers must make the first move and create an opportunity for a court to act. Thus, generally speaking, courts cannot simply insert themselves in the policy making process; courts must first have an invitation to the party before they can dance. It follows, then, that an important component to understanding the when, how and why courts are utilized in policy making is the decision first made by the reformer to seek court based policy change. The decision making process of a reformer to determine such avenues of reform i.e. when and to what extent to utilize the court system to achieve the desired policy goal is a central focus of this study. Reform, in the context of this study, refers simply to policy change; those pursuing the policy change, either to the right or to the left, are therefore labeled reformers. I hypothesize that varying opportunity structures shape reformers decisions about when, how, and why to 5 utilize a court as a means to shape/make social policy. Additionally, I hypothesize that reformers in the field utilize institutions as a means to advance their policy goals as part of an overall strategy to accomplish an objective, rather than as an ends that will deliver a specific outcome. Should this hypothesis bear fruit, our understanding of the relationship of courts to policy reform will be enhanced as it contemplates reformers utilizing court based reform strategies in ways other than a court ruling in their favor and producing the desired policy end. These questions also contemplate courts in the policy making arena as more than just one static institution; rather, court based strategies can and do encompass other quasi-judicial institutions available to reformers to advance their policy objectives. Multi-Venue Reform and Interdependent Strategies Building from Roch and Howard’s3 assertion that the lines between an elected court and legislature are blurred because of their interconnectivity to the election process, I argue that reformers do not distinguish between court 3 Roch, Christine and Robert Howard, “State Policy Innovation in Perspective: Courts, Legislatures, and Education Finance Reform,” Political Research Quarterly, Vol. 61 (2008) p. 342. 6 based reform strategy and legislative reform strategy as separate and distinct avenues of reform. Rather, reformers formulate strategies that incorporate