Political Polarity and the Political Process

By: Roylee Brown

Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock

James Madison warned against anything that would “limit the ability to bring about change through the political process.” Dale Carpenter, The Dead End of Animus Doctrine, 74:3:585 Alabama L.R. 585, 591 (2023).  He referenced factions “who are united [or] actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Id. He observed that “[m]easures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” Id. This sounds like the political polarization that is limiting the ability to change through the political process today.

I am puzzled that politicians resist cooperation and compromise, clinging instead to an “all for me and none for you” stance. Such an approach usually backfires. It seems that some politicians are willing to go down with the ship as long as their enemies go down along with them. I am also baffled that so many ordinary people refuse to associate with or even talk to people who believe differently than them.

Political polarization is resulting in “a catastrophic loss of diversity.” Morgan Kelly, Political Polarization and its Echo Chambers: Surprising New, Cross-disciplinary Perspectives from Princeton, Princeton High Meadows Environmental Institute(Dec. 9, 2021). Polarization undermines democracy by making courts biased and legislatures representative of only some. It turns leaders into enemies. Polarization destroys the personal relationships necessary to lift and be lifted.

Polarization is bad for people, and bad for business. One example is how the Chevron doctrine, as applied during political polarization, has curtailed business. The question in Chevron was whether the Court or the EPA could best interpret the meaning of an ambiguous word in The Clean Air Act. Justice Stevens wrote that the Court should defer to the Agency because agency heads have to answer to a constituency. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 866 (1984).

At first, this resulted in greater accountability. But as political polarity encroached, every time a new President was elected the newly appointed agency heads changed existing policies to align with the new party stance. Richard J. Pierce, The Combination of Chevron and Political Polarity has Awful Effects, 70 Duke Law Journal Online 91, 96-99 (2021).

Among other results, this created high risks for investors. For example, applying the Chevron Doctrine to internet regulation means that when there is a Republican president, the FCC has greater regulatory powers over the internet and policies are made to favor internet content providers. But when the president is a Democrat, the regulations are repealed. Then, unhampered by regulations, internet service providers profit. The result is that investors have no security; they don’t know what the situation will be after the next election. “By combining Chevron with political polarity, we have adopted a policy that discourages investment by both internet content providers and internet service providers.” Id.

The Court is currently considering whether to overturn Chevron. Justice Kavanaugh said, “The reality of how this works is Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in, and, whether it’s communications law or securities law or competition law or environmental law, it goes from pillar to post.” Melissa Quinn, Supreme Court Signals Openness to Curtailing Federal Regulatory Power in Potentially Major Shift, CBS News, Jan. 17, 2024.

Some citizens and legislators are working towards a more beneficial relationship. One example is FairVote, “a nonpartisan organization that conducts research and advances voting reforms that make democracy more functional and representative.” Who We Are, FairVote, Jan. 17, 2024.

FairVote promotes ranked-choice voting as a way to make elections better. Id. In this method, candidates of both parties are listed on the same ballot. Voters may select as many choices as they want, and rank them according to preference. The winner is the candidate with a majority of votes. This is remarkable compared to traditional elections where the winner often only gets 20 or 30% of the votes. Id. In ranked choice voting, women, people of color, and independents win more elections than they do with traditional ballots. Id. Gerrymandering doesn’t seem to affect the outcome, and campaigns are more civil. Id.

Future Caucus is another good example of marshalling our differences to solve our problems. Future Caucus works “to bridge the partisan divide and lead a new era of collaborative governance.” Activating Young Legislators To Bridge Partisan Divide, Future Caucus Jan. 17, 2024

In Arkansas, Future Caucus has been recognized by the General Assembly. The text of the bill states in part that the caucus is “working to transcend political polarization…[advance] future-oriented solutions to the issues facing future generations…and [work] towards a culture of political cooperation.” H.R. 1052, 94th Gen. Assemb., Reg. Sess. (Ar. 2023).

An editorial on the caucus begins, “who says there’s no good news in the newspaper? Imagine elected leaders in Arkansas speaking about collaboration, finding common ground and trying to discern the issues in which the state’s residents are better served by something beyond loyalty to political parties.”  In the Arkansas Legislature, Common Ground Based on the Quality of Ideas Can Advance the State, Northwest Arkansas Democrat-Gazette, Dec. 11, 2022.

As a third-year law student, I have observed that one fact is common to every subject: really smart people rely on the same information but come to different conclusions! At first, the idea that different conclusions can all be “right,” was disconcerting. Now it is exhilarating! It makes me wiser, more sympathetic, and more aware of what needs doing and how to do it. Knowing that someone is not “wrong” just because they disagree is a relief. It’s a feeling of expansion while at the same time, grounding.

Kudos to James Madison, and to all efforts that celebrate our American cacophony, that wield our differences for the good of all.

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