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The Brown University Journal of Philosophy, Politics, and Economics (JPPE) is a peer reviewed academic journal for undergraduate and graduate students that is sponsored by the Political Theory Project and the Philosophy, Politics, and Economics Society Program at Brown University. The Brown Journal of Philosophy, Politics & Economics Volume VII, Issue I scroll to view articles Featured Articles Philosophy Body Ethics: Moving Beyond Valid Consent Christine Chen Non-Self Through Time Anita Kukeli Divisive Identities Exploring the Interplay of Personal and Social Identities Ella Neeka Sawhney The Captain and the Doctor George LeMieux Read More PoLitics The European Union Trust Fund for Africa: Understanding the EU’s Securitization of Development Aid and its Implications Migena Satyal A Death Sentence Beyond Death Row: Helling v. McKinney and the Constitutionality of Solitary Confinement Hallie Sternblitz Rewriting the Antitrust Setlist: Examining the Live Nation-Ticketmaster Lawsuit and its Implications for Modern Antitrust Law Katya Tolunsky Read More Economics Read More Not Paying income tax timely leads to significant financial losses for the governments. What design changes could be made to tax collection policy to minimize these delays? Aryan Midha One Planet, One Oklahoma: Exploring a Framework for Assessing the Feasibility of Localized Energy Transitions in the United States Anna Hyslop Applications for JPPE will resume in the fall! See Available Positions

Author Name < Back Refuting the Myth of Progressive Secularism: An Analysis of the Legal Frameworks Surrounding Religious Practice in France and Bahrain Bridget McDonald This paper explores the idea that a secular state is inherently more progressive than a religious nation (a country with a designated state religion). Looking through the lens of freedom of religious expression, I argue that having a secular clause in a country’s constitution does not necessitate a higher degree of religious freedom. Decades of Western discourse linking secularism to modernization has created the notion that religious countries cannot foster free and prosperous societies to the level of secular nations. To refute this view, this paper builds on Talal Asad’s critiques of the contemporary secular model as Eurocentric. Additionally, I expand on the policy overlap discussed in John Bowen’s article comparing the French and Indonesian judicial systems. I employ a comparative case study model to evaluate the legal frameworks surrounding religious practice in France (a secular state) and Bahrain (a Muslim state). Findings indicate that although the two countries differ in terms of religion’s place in government, significant overlap exists between their laws impacting religious practice. I argue that in certain cases, Bahrain exhibits a higher degree of tolerance for religious expression than France. I conclude that religious states can value religious identity more than a secular country, therefore enabling select religious nations to foster religious freedom to equal or higher levels than their secular counterparts. However, more comparative research needs to be done to fully evaluate the dimensions of religious freedom in secular and religious countries. Introduction In the 2022 French presidential elections, news coverage of far-right candidate Marine Le Pen’s outlined platform – titled 22 Measures for 2022 – highlighted the second goal on her list: “Eradicate Islamist ideologies and all of their national territory networks.” Le Pen closely tied this sentiment to laïcité (secularism), a French value developed during the Revolution that established the foundation for a formal separation of church and state. Le Pen’s rhetoric has brought forth discussion on the role of secularism in the government and the impact of secular policies on the French Muslim community (Ataman, 2022). Though initially a primarily Western ideology, a clause pertaining to secularism now appears in 71 countries’ constitutions (World Population Review, 2022). These nations, referred to as constitutionally secular countries, are typically associated with higher GDP (Ruck, Bentley & Lawson, 2018), more socially progressive policies, and increased freedom. However, the recent ban on burqas and niqabs in secular countries has brought into question the progressive nature of secularism. France, Switzerland, Belgium, and Bulgaria have fully banned burqas, while various other European countries have banned the burqa to differing degrees. This trend, which has been criticized for discriminating against Muslims, demonstrates the complicated relationship between secularism and minority religious groups. France, the first European country to ban the burqa via a law prohibiting facial coverings (Erlanger, 2011), has taken further steps to target the Muslim community, including fining women for wearing a “burkini”– a full body swimsuit for Muslim women, that, unlike a burqa, does not have a facial covering (The Guardian, 2016). Labeled as a tactic to fight extremism, the burqa ban is one of many laws regulating Muslim practices and expressions of Muslim identity, such as pressuring imams to sign a charter of republican values (Williamson, 2020). The targeting of the Muslim community in France challenges the idea that secularism entails socially progressive policies. If secularism suppresses religious freedom, then perhaps it is not as progressive as many Westerners believe. This paper seeks to refute the idea that a secular country is inherently more progressive than a religious nation. I will evaluate the legal frameworks of a secular state and a religious state, focusing specifically on areas of law that impact religious expression. This study will center on France, a vocal supporter of secular values, and Bahrain, a Muslim state that has placed emphasis on improving religious freedom over the past decade. Ultimately, this paper argues that the inclusion of a secular clause in a nation's constitution does not necessitate a higher degree of religious freedom. Theoretical Framework In 1870, the term “secularism” was coined by British writer George Holyoake to describe a moral code that exists independently from religious doctrine. Today, secularism is defined as “ the principle of separation of the state from religious institutions” (Oxford Languages), though the degree to which secular countries separate church and state varies widely . For example, while Indonesia is constitutionally secular, the Aceh region of the country is under Sharia law. The discrepancies in how secularism manifests in countries’ legal structures necessitates further exploration on how secularism has historically been conceptualized and defined. Though many scholars have addressed secularism, much of the discourse has been from a Western perspective, which led to significant bias in early secular theory. Max Weber and Emile Durkheim’s work hypothesized that secularism and modernity were tied (Cannell, 2010); the authors identified the decline of traditional religious belief in Europe as the result of technological advancements and economic growth. One notable criticism of this theory came from Talcott Parsons, who claimed that the patterns of religious participation in Europe should not serve as an indicator for global secular trends (Cannell, 2010). Parsons further argued that Weber’s essay, The Protestant Work Ethic and the Spirit of Capitalism , exhibited a Eurocentric perspective (Cannell, 2010). Additionally, Protestant Ethic displayed sentiments of Western supremacy and presented capitalism as the ultimate economic system (Weber, 1905). Peter Berger is another critic of the theory that secularism is connected to modernization. He argued that traditional religious beliefs were not being abandoned and were instead evolving, and cited the development and upsurge of evangelism in the United States as evidence (Berger, 1999). Despite criticism, however, Weber and Durkheim’s theory remained prevalent for several decades (Cannell, 2010). This skewed academic perceptions of secularism and linked the concept to a Western and capitalist definition of progress. The absence of an internationally accepted definition of secularism, and varying religious, social, and governmental structures across the world further complicate how secularism is defined. However, newer discourse on secularism has reflected a more comprehensive view of the concept. In his 2003 book, Formations of the Secular, Talal Asad posited that the Western perception of secularism as progressive is inaccurate and underscored the Western European origins of contemporary secularism. Asad emphasized that liberal secularism should not apply to all societies and that it allows for the prohibition of certain religious practices; this paper adopts Asad’s stance and argues that the prohibition of religious practices legitimizes discriminatory policies. Further, Asad states that “the ideology of political representation in liberal democracies makes it difficult if not impossible to represent Muslims as Muslims … Because in theory the citizens who constitute a democratic state belong to a class that is defined only by what is common to all its members and its members only.” Using this lens, this paper asserts that French laws limiting religious practice in the public sphere further isolate religious minority groups. Asad’s contributions to secular discourse and his discussion on belonging and identity in a liberal democratic state lead to the question of whether constitutional secularism offers a higher degree of religious tolerance within a country when compared to a nation that has an established state religion. Through the collection and analysis of laws impacting religious practice in France and Bahrain, this paper seeks to support Asad’s conclusions and determine the degree to which constitutionally secular nations are able to promote religious freedom. Although previous comparative case studies on secular and Muslim countries are extremely limited, John Bowen’s article , Religious Discrimination and Religious Governance Across Secular and Islamic Countries: France and Indonesia as Limiting Cases (2010) offers a selection of preliminary findings and sheds light on areas in need of additional study. In the article, Bowen concluded that there is notable overlap in policy between France and Indonesia. Bowen argued that despite having different governmental structures and views on religion’s place in the public sphere, similar policies appeared in both countries. Additionally, Bowen called for further comparative study on the scope of this phenomenon to expand upon his research into other aspects and applications of secular policy. Building on observations on policy overlap between France and Indonesia, this paper explores the similarities and differences between France’s religious policies and those of Bahrain – a Muslim state. This comparison provides further insight into the legitimacy of the theory that secularism fosters higher levels of religious freedom. A. Measuring Religious Freedom The United Nations guarantees religious freedom in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. The UDHR and ICCPR incorporate a number of components into their definition of religious freedom: the freedom to adopt, change, or renounce a religion, freedom from coercion, the right to manifest one’s religion, the freedom to worship, the ability to establish and maintain places of worship, the right to display religious symbols, the ability to observe holidays, and protection from discrimination on the basis of religion. While there is no single, defined approach to measuring religious freedom, the definition provided by the UDHR and ICCPR allows for guidance in evaluation. Additionally, multiple non-governmental organizations (NGOs) have used different metrics to measure religious freedom, which, when combined with international standards for defining religious freedom, aid in understanding how to accurately assess the subject. For example, the Pew Research Center (PRC) measures religious freedom by analyzing both social and governmental restrictions on religious action (2016). Since constitutional secularism exists within the confines of state law, this paper focuses solely on governmental policies surrounding religious expression. The social perception of other religions and religious freedom, while important, does not relate directly to the argument and would be best analyzed in further studies. A second way of measuring religious freedom is through the framework used in Freedom House’s annual freedom reports, which ranks countries on a scale of 1 to 4 (1 being the lowest possible score) in a number of categories, including freedom of religious expression. In its 2020 reports, Freedom House asks, “Are individuals free to practice and express their religious faith or nonbelief in public and private?” to determine the level of religious freedom in a country. This paper uses this question, the presence of governmental restriction on religious action (as outlined by the PRC), and the components of religious freedom listed by the UDHR and the ICCPR as a definition of what religious freedom looks like in practice and utilizes the definition for legal analysis. Though there are many laws governing religion in France and Bahrain, this paper focuses on laws that directly impact religious practice. The paper highlights seven categories of law as markers of religious freedom. The groups of law reflect a combination of the approaches used by the Pew Research Center and Freedom House, as well as relevant components of the UDHR and ICCPR’s definition of religious freedom; each section examines an aspect of government restriction imposed on free religious practice (apart from Constitutional Status, which offers critical context on the legal setting in the countries), and categories selected answer whether individuals are free to practice in public and private. III. Background France’s deeply entrenched notion of laïcité, which allows for extreme criticism of religion in the public sphere, is contrasted by Bahrain’s stringent anti-blasphemy policies that protect all registered religions from criticism. Each of these ideologies is rooted in the history and culture of the two nations. This difference in approaching public discourse is one of various examples where France and Bahrain diverge in their policies surrounding religion. To understand policy-making relating to religious practice in France and Bahrain, it is necessary to establish baseline knowledge on the histories of the nations. A. France Religious History and Laïcité — Before the French Revolution, Catholicism was the official religion of France. The conversion of Clovis I in the late 400s tied France to the papacy, and later monarchs enjoyed close relations with the Church. Hundreds of years of Catholic influence on the French monarchy and corruption within both institutions contributed to growing resentment towards the Church, which peaked during the early stages of the French Revolution and subsequent Reign of Terror. Demands for a secular government were followed by the persecution and murder of Catholic clergy members in the late 1700s. Though Napoleon Bonaparte reconciled with the Catholic Church in 1801, France did not reinstate Catholicism as the national religion. Over the next century, France continued to dechristianize the public sphere, culminating in the Loi du 9 décembre 1905 concernant la séparation des Églises et de l'État (1905 law on the separation of churches and state). Since the Revolution, France has developed a unique brand of secularism, laïcité, that goes beyond the separation of church and state, arguing that religious expression should remain outside the view of the public eye. This ideology has manifested itself in laws that prohibit the wearing of religious symbols in public schools and ban face coverings. The concept of laïcité has changed, however, since its original conception. As discussed by Eoin Daly (2012), secularism has moved beyond separating church and state and now acts as a justification to move differing religious identities into a private sphere and promote a French identity embedded in shared national values. A 2020 report by the French government offered clarification on the country’s reasoning surrounding laïcité: The freedom to express one’s religious convictions can be limited for the sake of public order, under conditions defined by the law. Freedom must, however, always be the rule, and the limitations the exception, in view of the constitutional principles enshrined in our Republic and France’s international commitments, with which such legal restrictions must be compatible. An additional outcome of laïcité is the prohibition of data collection pertaining to religious affiliation; this policy makes it somewhat difficult to gain a holistic picture of France’s religious landscape. The Religious Futures Project at the Pew Research Center (2016) estimates that 58.1% of the population is Christian, 8.3% is Muslim, and 31.9% is unaffiliated as of 2020. Notable trends include growth in France’s Muslim population (due to increased immigration from former French colonies in Africa), a consistent decrease in people identifying as Catholic, and increased growth in those identifying as unaffiliated. Of the 12 national holidays in France, 7 celebrate Catholic events, which seemingly contradicts France’s strict separation of national and religious affairs. France is currently scored as 3 out of 4 on freedom of religious expression by Freedom House (2020). Recent Events and Political Climate — Law surrounding religious practice in France has been heavily influenced by numerous terrorist attacks over the past decades. During the 1980s and 90s, France saw various attacks by numerous groups: Hezbollah, an integrist Catholic group, the Armed Islamist Group, and other non-religious groups like Action Directe (Shapiro & Suzan, 2003). The 2000s brought more deadly attacks, the majority of which had connections to Islamist groups. Following a series of bombings, shootings, and stabbings by various Islamist groups in 2014 and 2015, France enacted laws increasing government surveillance (Law Nº 2669, 2015) and anti-terrorism efforts (Law Nº 1353, 2014). Terrorist attacks led to a renewed emphasis on laïcité in the political sphere. Far-right isolationist parties led by politicians like Marine Le Pen incorporated anti-Muslim messaging in their campaigns, promising French voters safety from radical Islam (Fieschi, 2020). In this climate of frequent terror attacks and the rise of far-right parties, France created and amended legislation surrounding religious practice. B. Bahrain History — Bahrain, located off the coast of Saudi Arabia, fell under the control of various empires before declaring independence from the British in 1971 (Gardner, 2017). Known for its pearl beds and freshwater springs, the island was seen as highly desirable by political entities. This caused numerous changes in leadership. From the 1400-1800s, the territory of Bahrain was controlled by the Omanis, Portugal, Persia, the ‘Utub (a Sunni tribal confederation), and the United Kingdom (Gardner, 2017). Throughout the centuries of changing leadership, Bahrain developed a diverse population. The pearl trade brought merchants from all over the world, and the territory was exposed to many ideologies, religions, and cultures as a result of the various empires that had taken control of the island. Though small populations of Jewish, Hindu, and Christian people have lived in Bahrain over past centuries, Islam has been the predominant religion since its introduction to the indigenous population in the 640s (Gardner, 2017). The majority of Muslim Bahraini people identify as Shi’a. However, a smaller Sunni elite has ruled the country since the arrival of the Sunni al-Khalifa family, who came with the ‘Utub. Bahrain was declared a monarchy in 2002, headed by King Hamad bin Isa al-Khalifa, who remains in power today. According to the Religious Futures Project at the Pew Research Center (2016), 69.7% of the population is Muslim, and within that group, roughly 60% is Shi’a and 35-40% is Sunni; 14.1% of the population is Christian, 10.2% is Hindu, and 2% is unaffiliated as of 2020. Bahrain is currently scored as 1 out of 4 on freedom of religious expression by Freedom House (2020). Recent Events and Political Climate — In 2011, Bahrain served as a starting point for the Arab Spring in the Gulf countries. The country saw massive protests from the Shi’a community, who decried unfair treatment by the Sunni government. The government reacted by killing and arresting protestors, destroying Shi’a mosques, and dismantling the traffic circle that had served as the uprising’s epicenter. Following condemnation by the international community and human rights organizations, King Hamad launched an investigation and resolved to enforce policies to improve tensions between the Shi’a and Sunni groups (U.S. Commission on International Religious Freedom Report on Bahrain, 2020). While the initial success of these policies was contested, the government has taken significant steps in the past decade to ameliorate the state of religious freedom in Bahrain (USCIRF, 2020). The government, which had rescinded the citizenships of 1000 Bahrainis (most of whom were Shi’a) due to alleged security threats, reinstated over half of their citizenships in 2020 (USCIRF, 2020). While typically met with government hostility, the Shi'a holiday Ashura remained largely peaceful in 2020 and 2021; discourse concerning Ashura between the Sunni government and Shi’a clerics has eased tensions between the parties to allow for the celebration of the holiday. However, despite improvement, tensions remain between the Sunni and Shi’a communities. In terms of relations with non-Muslim groups, the Bahraini government is notably tolerant of other religions. There are 19 recognized religions in the country, all of which are able to practice their respective beliefs freely. IV. Methodology A. Overview This study aimed to determine whether the legal framework of a secular state fosters higher degrees of religious freedom than that of a religious state. This paper uses a comparative case study approach to ensure a balanced review of France’s domestic policy concerning religious practice. Further, the comparative case study model offers critical insight into the caveats of secular policy when implemented on a national scale. Bahrain was chosen as a comparative subject because it is a Muslim state in which members of various other religious groups reside. The primary goal of data collection was to gain a deeper understanding of the laws impacting religious practice in both countries. To effectively compare the two countries, specific areas of policy were chosen (listed in Table I) following the combined framework of Freedom House and the Pew Research Center described in the Theoretical Framework section. Primary qualitative data concerning policy was taken from law databases published by the French government. Secondary qualitative data was extracted from reports on Bahrain and France by the United States Commission for Religious Freedom (USCIRF), the United States embassy, and Freedom House country reports. The search process yielded a number of pertinent laws surrounding religious practices in France and Bahrain. B. Comparing Policy on Domestic Religious Practice Information on France’s laws was sourced from the government. Translations were provided by the author unless indicated otherwise. The United States State Department reports informed general knowledge on the legal framework surrounding religious practice. Due to the general inaccessibility of translated laws from a Bahraini government source, information about religious laws in Bahrain was obtained from United States government reports. Recognizing the potential bias of the United States government, only objective data (such as the description of laws) was used in this paper. Areas of crucial law were chosen after general study on legal frameworks surrounding religious practice; the categories of policy listed in Table I were selected because they represent the most direct interaction between the government and religious groups and reflect international standards for religious freedom as expressed by UDHR and ICCPR documents. It was imperative that both countries had laws falling under each assigned category, otherwise, policies could not be compared. Laws were evaluated based on the level to which they promoted or inhibited freedom of religious expression, and a compare and contrast approach was used, reflecting the style of Bowen. Larger implications and enforcement of the laws were not considered, as the repercussions of policy were too far-reaching to effectively encompass in this comparative case study. Instead, analysis of laws consisted of identifying common themes and key similarities and differences between the legal frameworks of France and Bahrain. Other peripheral areas of law could be colored by religious or secular ideologies, such as marriage laws. However, to keep the scope of this study appropriately narrow, peripheral policies were not considered. V. Results: Analysis of Legal Frameworks of France and Bahrain A. Constitutional Status The constitutional statutes of France and Bahrain are, as discussed earlier, on opposite sides of the ideological spectrum. These religious designations are detailed below for context. (i) France Article 1 of the French constitution states “France shall be an indivisible, secular, democratic and social Republic.” (ii) Bahrain Article 2 of the Bahraini constitution states “The religion of the State is Islam. The Islamic Shari’a is a principal source for legislation.” B. Anti-Discrimination Laws (In Reference to Religion) Both France and Bahrain have clauses in their constitutions prohibiting discrimination against others on the basis of faith. Beyond their respective constitutions, both countries have enacted laws forbidding hiring and workplace discrimination in relation to religious affiliations, as listed below. (i) France [The internal regulation] may not contain provisions which would prejudice the employees because of their sex, morals, sexual orientation, age, family situation, origins, opinions, religious beliefs, physical appearance, name, or disability, when they have equal professional capacity capability (L. 122-35, 2008). (ii) Bahrain The labor law prohibits discrimination in the public sector on grounds of religion or faith. The law also stipulates recourse through a complaint process to the Ministry of Labor and Social Development to legal bodies in the event of discrimination or dismissal in the work place on the basis of religion (U.S. Commission on International Religious Freedom, Bahrain, 2019). Analysis — The anti-discrimination clauses in both the countries’ constitutions have been further developed into active laws. The overlap of anti-discrimination policy in France and Bahrain shows that, in this case, a secular country and a religious state are able to promote religious freedom in the same capacity. C. Registration with the Government and Government Funding Both the French and Bahraini governments have registration processes in place for religious organizations. Recognition of a religious group by the respective governments allows for financial support, whether that comes in the form of subsidization or tax-exempt status. As government registration is tied to financial support in each country, the process allows the state to maintain relative control over the religious makeup of the nation; this is achieved to varying degrees in accordance with the requirements of the law. (i) France According to the 2019 USCIRF report on France: In France, religions are not required to register with the government. However, in order to receive official recognition, tax-exempt status or financial aid, religious groups must go through a number of processes. To receive tax-exempt status and official recognition as a religion, groups must apply as associations of worship, and to receive government funding, groups can apply as cultural associations. Religious organizations are able to qualify as both an association of worship and a cultural association, thus receiving tax-exempt status and government funding. It should be noted, however, that government funding is permitted only to go towards non-religious activities hosted by a religious group, such as educational programming. Despite Article 2 of the Law of 1905 Concerning the Separation of Church and State stating “ The Republic does not recognize, pay or subsidize any religion”, the French government owns and operates religious buildings built before 1905. Approximately 90% of Catholic buildings in France are subsidized by the government, while 12% of Protestant churches and 3% of Jewish temples are subsidized as a result of the law. There are no Buddhist or Muslim centers of worship subsidized by the government (French Senate report, 2015). (ii) Bahrain According to the 2019 USCIRF report on Bahrain: Bahrain’s government requires that religions register in accordance with their faith. Sunni and Shi’a organizations register with the Ministry of Justice and Islamic Affairs and Endowments and register further with the Sunni and Shi’a Waqfs to receive funding. Non-Muslim groups must register with the Ministry of Labor and Social Development, during which they must provide a number of details (including minutes from meetings, personal information on founders and the group’s bylaws). Religious groups (Muslim and non-Muslim) are not allowed to receive funding from foreign donors, and money collection is monitored by the government. Analysis — Bahrain’s laws surrounding the funding of religious groups and registration with the government are more stringent than France’s. However, while France does not require registration, restrictions from funding and tax-exempt status for non-registered groups act as significant incentives in pushing organizations to submit an application to the government. In both cases, the government seeks access to information on religious groups, though Bahrain attempts to monitor activities to a more extreme extent than France. While this does not necessarily infringe on the status of religious freedom, the laws in both countries allow significant room for discriminatory funding. An example of this was displayed in a 2015 French Senate report that noted the vast majority of France’s 2,500 mosques receive little to no public funding while Catholic institutions are almost entirely subsidized, but pointed to Muslims’ inability to organize and register with the government as the reason for funding inequality (2015 French Senate report, 23). As this claim is difficult to quantifiably prove, it allowed the government plausible deniability on the lack of funding for Muslim organizations. In Bahrain, disproportionate funding for Muslim organizations is enshrined in the country’s laws. While France’s legal framework surrounding registration is not as strict as Bahrain’s in this case, policies in both countries enable an unequal distribution of funding. D. Religion in the Public Sphere: Freedom of Speech and Religious Symbols The French and Bahraini approaches to religion in the public sphere offer vastly different interpretations of the promotion of religious freedom. Nevertheless, both countries are stringent in their application of the law. (i) France France has various laws protecting freedom of speech. In reference to religion, Article 10 of the 1789 Declaration of Human and Civic Rights states that “no one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order.” According to the 2019 USCIRF France report: In accordance with secular law, people employed by the government are not allowed to wear signs of religious affiliation in the workplace or in public spaces. A 2010 law prohibits face coverings in public places, including the wearing of a niqab or burqa; refusing to remove the face covering can result in a 150 euro fine. (ii)Bahrain Bahrain has anti-blasphemy laws that apply to all religions. The penal code calls for punishment of up to one year’s imprisonment or a fine of up to 100 dinars ($270) for offending one of the recognized religious groups or their practices, or for openly defaming a religious figure considered sacred to members of a particular group. The law stipulates fines or imprisonment for insulting an institution, announcing false or malicious news, spreading rumors, encouraging others to show contempt for a different religious denomination or sect, illegally gathering, and advocating for a change of government, among other offenses. The law prohibits anti-Islamic publications and broadcast media programs and mandates imprisonment of no less than six months for ‘exposing the state’s official religion to offense and criticism (USCIRF, Bahrain, 2019). Non-Muslims are not required to wear traditional Muslim clothing. The law allows non-Muslim places of worship to display religious symbols. Analysis — In summary, French law allows for extensive freedom of speech in reference to religion while Bahrain maintains strict laws on speech in reference to religion. Both of these policies purport to uphold religious equality; in France, one may critique any religion, while in Bahrain there is no tolerance for criticism of any religion. These laws are a clear example of where France and Bahrain diverge ideologically, but the difference in approach does not mean one policy is more effective than the other in promoting equal access to religious expression. In France, varying definitions of hate speech and the government’s high tolerance for criticism of religion can be exploited to target minority religions. In Bahrain, anti-blasphemy laws protect all religious groups from hate speech, but policy blatantly favors the interests of Muslim groups. While the laws in France and Bahrain are opposites in intention, they both result in bias towards the dominant religious group. When comparing the two countries, Bahrain allows for more freedom in expressing religious affiliation in public spaces. French laws prohibiting face coverings directly infringe on Muslim women’s abilities to fulfill religious duties, and the ban of ostentatious religious symbols in public settings does not allow citizens to express their religion freely. Religious dress is a significant aspect of many traditions, including Christianity, Islam, and Judaism. The prohibition of wearing religious garments violates an adherent’s beliefs and negates religious freedom. Bahrain does not have specific laws regarding religious dress, though it should be noted that societal norms dictate a culture of modesty. That being said, as this paper is reviewing formal law, Bahrain is significantly less stringent in the ruling of religious dress from a policy perspective. E. Religion in Education (i) France France’s attempts to keep religion out of the public sphere are clearly reflected in policies surrounding religion in the public school system. Public schools are secular. The law prohibits public school employees from wearing visible signs of religious affiliation and students from wearing “conspicuous religious symbols,” including the Muslim headscarf, Jewish skullcap, Sikh turban, and large Christian crosses (USCIRF, France, 2019). In terms of private education: By law, the government subsidizes private schools, including those affiliated with religious organizations. In 98 percent of private schools, in accordance with the law, the government pays the teachers’ salaries, provided the school accepts all children regardless of their religious affiliation. The law does not address the issue of religious instruction in government-subsidized private schools or whether students must be allowed to opt out of such instruction (USCIRF, France, 2019). (ii) Bahrain Because Bahrain is a Muslim state, religious instruction is heavily incorporated in the school system. The law regulates Islamic religious instruction at all levels of the education system. The government funds public schools for grades 1-12; Islamic studies are mandatory for all Muslim students and are optional for non-Muslims. Private schools must register with the government and, with a few exceptions (for example, a foreign funded and foreign operated school), are also required to provide Islamic religious education for Muslim students. Private schools wishing to provide non-Islamic religious education to non-Muslims must receive permission from the Ministry of Education (USCIRF, Bahrain, 2019). In terms of private education: The government also permits non-Muslim groups to offer religious instruction to their adherents in private schools (USCIRF, Bahrain, 2019). Analysis — While France maintains secularism within the educational system, the banning of religious symbols in schools infringes on religious freedom. As addressed earlier, the prohibition of religious garb violates the ability of an individual to freely practice their belief. Although Bahrain emphasizes Islam in education, the ability for non-Muslim students to opt out maintains religious freedom. Therefore, Bahrain allows for a higher degree of religious expression within the education system. F. Anti-Terrorism Policy The other sections of law described above have direct influence on the ability of religious adherents to practice their belief in the public and private spheres. Though anti-terrorism policy may not initially appear as an area of law that has an impact on religious freedom, both France and Bahrain have employed discriminatory practices labeled as tactics to fight extremism. (i) France The French perception of religion’s ties to terrorism is demonstrated by legislation that specifically targets religious institutions. Counterterrorism legislation grants prefects in each department the authority to close a place of worship for a maximum of six months if they find comments, writings, or activities in the place of worship “provoke violence, hatred or discrimination or the commission of acts of terrorism or praise such acts of terrorism.” The management of the place of worship has 48 hours to appeal the closure decision to an administrative court. Noncompliance with a closure decision carries a six-month prison sentence and a fine of 7,500 euros ($8,400) (USCIRF, France, 2019). In March 2021, a bill aimed at combating radicalism and separatism (titled Supporting Respect for the Principles of the Republic) was passed through the lower house of Parliament and went to the Senate. On April 13th, 2021, the Senate added stipulations to the bill that were viewed as harsher than the initial proposals (Woods, 2021). The original bill would, among other things, restrict people from home-schooling their children, crack down on polygamy and forced marriages, and make the sharing of someone’s private life and location illegal (N° 3649 rectifié, 2021). Excerpts from the edited bill are detailed below: If passed, the bill would, among other things, prohibit the wearing of the veil and other ostentatious religious symbols to persons accompanying school trips, allow the internal regulations of swimming pools and public bathing areas to prohibit the wearing of the burkini, and prevent the issuance and renewal of residence permits for individuals who are found to have expressed a rejection of the principles of the Republic (Loi confortant le respect des principes de la République, 2021). (ii) Bahrain There are penalties of up to five years in prison for encouraging or possessing materials that support “terrorist activities.” Bahrain imposed one round of sanctions against individuals and entities affiliated with the Iranian regime’s terror-support networks in the region. The government is also able to expel individuals who are suspected of terrorist activity (U.S. State Department, Report on Terrorism, Bahrain, 2019). In terms of reconciliation efforts between the Sunni and Shi’a communities: In coordination with the Supreme Council for Islamic Affairs, a team of Ministry of Education-appointed experts routinely reviews and develops the Islamic studies of the public school curriculum to emphasize shared Islamic values between different Sunni and Shi’a schools of thought, reject extremism, and promote tolerance and coexistence (USCIRF, Bahrain, 2019). Analysis — In both countries, many of the laws surrounding anti-terrorism efforts can be easily exploited to target specific groups of people. In France, the closing of worship centers has solely impacted mosques, while Bahrain’s expulsion policy has primarily impacted leaders of the Shi’a community. France’s new bill comes on the heels of a speech by President Macron condemning separatism in the country. While the legislative language does not name any religion directly, the explanatory statement preceding the bill states the following: An insidious but powerful communitarian entryism is slowly destroying the foundations of our society in certain areas. This entryism is essentially of Islamist inspiration. It is the manifestation of a conscious, theorized, politico-religious political project, the ambition of which is to make religious norms prevail over the common law that we have freely given ourselves (Loi nº 3649, 2021). Because the bill refers to Islamism as the reason for the legislation, much of the proposal is aimed directly at Muslim communities. The recently added stipulations show a harsher, more direct targeting of the Muslim community in France. Anti-terrorism policy in Bahrain targets members of the Shi’a community who are seen as causing separatism. This was prevalently displayed when the kingdom expelled a number of Shi’a individuals, who were eventually granted re-entry when no evidence of terrorist activity was found. In this sense, Bahrain and France are notably similar in their reasoning and justification for anti-extremist laws. VI. Discussion The results support the argument that a constitutionally secular country does not necessarily foster a higher degree of religious freedom than a religious state. Despite being ideologically opposed in reference to religion in government, France and Bahrain share overlaps in policy, as seen in the Anti-Discrimination Laws, Registration with Government and Government Funding, and Anti-Terrorism Policy sections of the analysis. Beyond policies that target or disproportionately impact a specific religious group, France and Bahrain employ inclusive anti-discrimination laws in their labor codes. In this case, both countries pledge to condemn religious discrimination in the hiring process or workplace. The countries employ similar registration policies for religious groups, directly tying legal access to practice and tax incentives to cooperation with state entities. A third overlap is in anti-terrorism efforts, often labeled as anti-extremist policies. France and Bahrain have enacted a number of alarming anti-extremism laws, often using vague wording (such as “terrorist activities” or “rejection to the principles of the Republic”) that hand significant power to the government’s interpretations of actions or words; the wording of laws allows for exploitation of the policies to fulfill specific agendas, as seen by Bahrain’s expulsion of Shi’a individuals and French policymakers’ justification for the “Supporting Respect for the Principles of the Republic” bill. While not all of the measures taken to combat extremism negatively impact specific religious communities, both countries have used anti-terrorism policies to target religious groups perceived as threatening to the state. A clear demonstration of the negative impacts of legislative rhetoric is reflected in the interchangeability of anti-terrorist and anti-extremist policies; in both countries, the targeted religious groups have become synonymous with terrorism. The similarities in the justifications and immediate outcomes of laws surrounding religious practice in France and Bahrain aid in showing that the label of “constitutionally secular” does not equate to increased levels of religious freedom, as both states are equally capable of implementing policies that positively and negatively impact religious expression. In the sections Religion in Education and Religion in the Public Sphere , France and Bahrain display significant differences in approach. In both cases, Bahrain exhibited higher degrees of tolerance for religious practice in public and for minority religious groups in general. France’s policies on wearing ostentatious religious symbols in public spaces disproportionately impact the Muslim and Jewish communities, all of whom have integrated religious garb into their belief systems. Further, while Bahrain emphasizes Islam in education, the country allows for non-Muslim students to opt out of those classes and does not prohibit students from wearing alternative religious symbols. France has yet to create laws around the ability of students to opt out of religious instruction at private schools, despite most private schools being funded by the government. France’s integration of discriminatory secular policy into the public sphere and the education system strengthens the argument that states with official religions, like Bahrain, can allow for higher levels of religious freedom in some areas of society. A potential explanation for this is how France and Bahrain approach religious identity. At its core, France’s secular ideology attempts to ignore religious identity altogether. Nonetheless, the rise of radical Islam in the country, a Christian-majority population, and the dynamics between France and Muslim-majority former colonial countries led to the French Muslim community becoming an easily-targeted scapegoat. In Bahrain, however, the historical presence of non-Muslim religions and a national understanding of the importance of spiritual affiliation have allowed for a legal framework cognizant of religious identity. This is not to say that Bahrain has created the ideal legal structure, but instead that the recognition of religious affiliation’s significance allows for development in the realm of religious freedom. France has shown regression in freedom of religious expression where Bahrain has displayed consistent progress; this trend further supports the theory that some religious states are appropriately situated to cultivate a society that offers higher degrees of religious freedom. The findings of this paper are consistent with Asad’s theory on secularism’s potential to be discriminatory and builds on Bowen’s observations of the French and Indonesian judicial systems. As showcased by secular laws in France disproportionately targeting and impacting Muslim individuals, the label of laïcité creates a wall of Western liberal ideology for policymakers to hide behind. Bowen argues that France and Indonesia, despite opposing views on the role of religion in the judicial system, adopt very similar policy positions. Bowen’s focus on how each of the countries deals with religious discrimination in the courts yields primarily positive observations, and he notes that the foundations of both systems attempt to promote fairness and equality. Bowen’s findings differ from the analysis of laws in this paper, which is likely because this paper focused on policy reaching beyond anti-discrimination laws and did not note the outcomes in judicial proceedings concerning religious discrimination. Even with the differences in tone between Bowen’s findings and the analyses in this paper, the outcomes of the study are in alignment with Bowen’s conclusion; despite being on different ends of the ideological spectrum, a secular state and a religious state bear significant resemblance to each other in terms of the legal framework. A. Addressing Inconsistencies with Freedom House The laws explored in this study paint a picture of France and Bahrain as both employing policies that negatively impact a specific religious group. In some instances, Bahrain displayed higher degrees of religious tolerance, despite the West’s view of secularism as more progressive. However, the findings of this paper are not reflected in Freedom House’s scoring of France and Bahrain on religious freedom in their respective 2020 reports. As discussed earlier, the NGO ranked France a 3 out of 4 and Bahrain a 1 out of 4 in response to the following question: “Are individuals free to practice and express their religious faith or nonbelief in public and private?” The laws discussed in the analysis portion of this paper display France’s various policies against public displays of religious affiliation; these laws blatantly interfere with expression of religious faith in public, implying that France should be scored lower than a 3 within the Freedom House framework. In the case of Bahrain, while there have been numerous infringements on religious freedom (specifically to target the Shi’a community), the report did not provide sufficient evidence to rank the country significantly below France. The report even notes that “non-Muslim minorities are generally free to practice their faiths.” Freedom House then discusses government discrimination against the Shi’a population by citing the events of the Arab Spring in 2011 (a reference that does not reflect the contemporary political atmosphere in Bahrain) and the arrest of Shi’a clerics accused of spreading messages of separatism. However, the report also states that “Shiite communities are free to carry out religious observances, such as the annual Ashura processions,” which exhibits a governmental commitment to religious freedom. Conversely, the 2020 French report describes current tensions saying, “Islamophobic rhetoric from prominent politicians and public figures on both the left and right is not uncommon. Multiple attacks at mosques throughout the country occurred in 2019.” After a review of the 2020 Freedom Reports for France and Bahrain, it appears that there is inconsistency in the way Freedom House scores religious freedom. While there are numerous valid criticisms of the state of religious freedom in both countries, Freedom House ignored many laws in both France and Bahrain when scoring, resulting in a potentially skewed and inaccurate representation of the legal frameworks that unjustifiably favors France. B. Limitations of Study This was a limited case study, so these findings are merely a reflection of the laws and policies addressing religious practice in France and Bahrain. While the framework used in this study could be applied to comparing religious freedom in other nations, other cases were not considered in this paper. Further limitations include the scope of the study, which consisted of governmental restrictions and focused on legal frameworks but did not address political rhetoric involvement in international treaties or agreements, or relations with secular and religious states. Further, this paper did not consider societal restrictions, which include the presence of anti-religious attacks, non-governmental groups that target religious communities, online rhetoric, and general hostility towards certain religious groups. Studies that explore these factors are necessary to gain a holistic understanding of the differing degrees of religious freedom in secular and religious countries. VII. Conclusion Comparing seven key areas of law within the French and Bahraini legal frameworks shows that there is significant overlap in legislation, intention, and policy outcomes. But how does this comparison link to the larger discussion around religious freedom and the validity of secularism? France, a country that prides itself on the value of laïcité, implements a number of discriminatory policies that predominantly impact Muslim citizens. In the public sphere, individuals who belong to faiths that utilize clothing as an expression of affiliation cannot practice their religions to the full extent. The idea of separating the religious self from the public self displays an understanding of religious belief as a secondary identity. For many, spiritual affiliation is a primary identity. Therefore, French laws surrounding religious practice are not applicable in a universal sense, nor do they foster a wide breadth of religious freedom for all faiths. Religious states, who are typically viewed as unable to foster high degrees of religious freedom, have equal opportunity to promote a religiously pluralistic society through legislation. While not all religious states choose to foster a space for minority religious groups, nations like Bahrain have made significant efforts to advance religious freedom. Though this study was limited to France and Bahrain, the countries are not outliers. While Bahrain deviates somewhat from other Gulf nations, Qatar, and to a lesser extent Oman, have legal frameworks in place to support spiritual pluralism and religious freedom. Other countries, such as Bhutan, Liechtenstein, Thailand, Andorra, and Brunei, are religious states viewed as fostering religious freedom. While there are religious states that suppress religious freedom, the analysis suggests that religious countries may be uniquely positioned to create legal frameworks inclusive of a population that views religious affiliation as a primary identity. Although Bahrain has not yet reached the point of fostering equal religious freedom for all groups, national policies show an understanding of the importance of ritual practice and religious identity. Beyond supporting the hypothesis, the findings of this paper suggest the need for a shift in thinking when evaluating secular and religious states. As displayed by the inconsistencies in scoring throughout the Freedom House annual reports on France and Bahrain, the West remains biased in favor of secular European systems of government. Moving forward, Western NGOs and government agencies should consider viewing religious affiliation as a primary identity when assessing legal frameworks and government policies instead of using a secular lens as the default perspective. 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The Life Cycle of the Responsibility to Protect The Ongoing Emergence of R2P as a Norm in the International Community Maxine Dehavenon Brown University Author Fabienne Tarrant Tathyana Mello Amaral Harry Xie Editors Fall 2019 Download full text PDF (10 pages) Introduction The “life cycle of a norm,” as presented by Martha Finnemore and Kathryn Sikkink, holds that for a norm to become fully accepted and internalized as the rational action in a certain situation, it must travel through three phases of existence: norm emergence, norm cascade, and norm internalization. At this point in time, there is a norm of a responsibility to protect, referred to as R2P, manifesting itself in the international community. However, it is currently stuck in the second phase of its evolution. While the actions taken by the Security Council in Bosnia represent R2P’s emergence as a norm championed by “entrepreneurs,” and the US-led NATO intervention in Libya, as well as the passing of Resolution 1764 in 2005 prove R2P’s successful passage beyond the “tipping point” into the stage of “norm cascade,” the current inaction on the part of the international community in the case of the Syrian genocide reflects the fact that the responsibility to protect has not yet become a fully realized norm to the point where it is universally recognized as the appropriate response to all human rights violations. This is due in part simply to the precedent set by the “failure” in the eyes of the international community of past invocations of R2P – a fact which is not a shortcoming of the strength of the norm, but rather of its application - but also to the structural challenges associated with allowing the application and trial of a norm to be dictated by a body as politicized as the Security Council. As reflected in the case of Syria, the veto power accorded to the P5 on the Security Council provides outliers to the acceptance of R2P, such as Russia, to hijack its trial process and stagnate its chance to become fully internalized. This paper begins with a discussion of the theoretical process by which a norm comes into being as described by Finnemore and Sikkink, followed by an application of such a process to the emerging norm of responsibility to protect through the framework provided by the cases of Bosnia, Libya and Syria. It then tackles the question of why the norm has yet to be fully internalized in the international sphere, presenting an argument for the fact that this is due to the undue power over its application given to the permanent members of the Security Council, and finally in the conclusion, it goes on to make an argument for how to overcome the incommensurate, politicized sway of the Security Council over R2P’s evolution as a norm. Theoretical Framework A norm in international relations is most commonly defined by Martha Finnemore and Kathryn Sikkink in their article “International Norm Dynamics and Political Change” as a “standard of appropriate behavior for actors with a given identity.” Such a definition provides a succinct, yet comprehensive inclusion of the major characteristics of norms, namely, their status as an ideational standard of conduct given a particular circumstance, and the universality of acceptance on the part of a certain group with respect said conduct’s legitimacy and necessity. It is also important to note, that for a standard to be considered a fully formed norm, it can’t only be acted upon physically or rhetorically by states, it must essentially be a “foregone conclusion” in the eyes of those party to it as the appropriate behavior. This distinction, though subtle, is crucial, in that it separates an emerging norm from a fully formed one; while an emerging norm is represented as such by conspicuous, conscious efforts to fulfill a standard set forward by norm entrepreneurs, an absolute norm is such because “[it is] internalized by actors and achieve[s] a “taken for granted” quality that makes conformance with the norm almost automatic.” This distinction is what separates a norm from something like a law, or a resolution; states do not just comply with it because of a positive duty to a legally or politically binding force, they comply with it as part of a negative duty to follow a principle so embedded in code of behavior as correct, that no thought goes into its action whatsoever. Finnemore and Sikkink outline in their article what has come to be known as the “life cycle” of the emergence of such a norm, or the evolution of a standard of behavior must follow in order to become a fully formed norm within the international community. This cycle has three phases. Phase one, titled “norm emergence,” is characterized by the promotion of a certain standard by what Sikkink and Finnemore call “norm entrepreneurs,” or those within the international community who could be considered “thought leaders” with respect to normative formation, through “organizational platforms” such as international institutions, NGO’s or transnational advocacy networks. The goal of such entrepreneurs during this stage is to persuade the most powerful states within the international community to accept and promote the norms they set forth, a process that is characterized by their calling attention to issues “using language that names, interprets, and dramatizes them.” The second stage in this process is characterized as the “norm cascade,” and is catalyzed by a “tipping point” when “norm entrepreneurs have persuaded a critical mass of states to become norm leaders and adopt new norms.” After this point, all other states will follow in the footsteps of those that set precedents within the international community, and a norm’s legitimacy and reputation as a standard of behavior is strengthened through socialization, institutionalization and demonstration. As mentioned above, while this stage may appear to produce fully formed norms, the limiting factor of the complete integration of norms is the fact that many countries accept or act upon it not because they feel they must from an internalized need, but rather as a way to either extend their own legitimacy, or please the great powers. The full internalization of a norm is what distinguishes stage three, or the idea that at this point, a norm has acquired a “taken-for-granted quality, and [is] no longer a matter of broad public debate.” This phase is somewhat paradoxical, in that if a norm has reached this point, it has been so intrinsically embedded in the rational behavior of a state, that in many cases, it is not even considered a point of discussion when states engage in decision-making; it has been so imbued in the framework of the international community, that its employment is no longer even up for debate. Such a theory has elements of both constructivist and realist strains of thought. The idea that international norms dictate the proper (in both moral and legitimate terms) behavior of states is one rooted in constructivist ideology – namely that states act based on the “logic of appropriateness” rather than the “logic of consequences.” Such a difference holds that norms represent an international system of social construction in which states make choices based on how appropriately their actions will fit within the framework of legitimacy of the international system. This paradigm supports the concept of the “life cycle of the norm” through the idea that a norm is created not by one individual state or organization which imposes it on others, but rather by an engaged process through which all states (and independent actors) have at least some level of agency. However, the notion that in phase two of the process, much of the universal acceptance of a norm (the “tipping point”) is based on its acceptance by the most powerful state actors holds some of its roots in realist theory, predominantly in the idea that the most powerful states hold sway over the actions of other states given their belief that it is rational to cooperate with the global powers. In this sense, the constructivist paradigm of norms as presented by Fennimore and Sikkink exists atop a realist foundation, still based on the whims of the hegemon. The Norm of R2P in Action – Its Life Cycle Through Cases The emergence of the norm of the responsibility of the international community to protect the human rights of all citizens holds its origins in the program of transitional justice implemented following the horrors of the Holocaust and the Second World War. This feeling has evolved over time from one based in the allocation of aid and peacekeeping forces to civilians in conflict zones to the legitimation of military intervention as a method of quelling human rights violations, through the manifestation of the Responsibility to Protect (R2P) in 2005. This document - signed into action unanimously by all member states - outlined a radical program of duty on the part of the international community to place human rights at the utmost level of importance and gave them the rhetorical allowance to supersede the Westphalian tradition of state sovereignty in cases of mass atrocities. However, while this represented a theoretical acceptance on the part of the international community – a sort of “tipping point” - with regards to the potential for military intervention in defense of human rights, it can merely be regarded as a singular step in R2P’s process to become a fully formed norm, a process which is recognized to have been in phase one during the Bosnian War, phase two during the Libyan intervention, and is currently showing its inability to pass into phase three as evidenced in its lack of invocation with regards to the current human rights crisis in Syria. Through these three cases, R2P can clearly be seen to be in the midst of Sikkink and Fennimore’s norm life cycle. The case of UN intervention in the war in Yugoslavia represents R2P’s status as a norm in the first stage of internalization. Widely considered to be “too little too late,” the actions of the United Nations through the UNPROFOR did not adequately serve their purpose as a force defending the human rights of all citizens; rather, their lack of decisive action – especially in the case of the Srebrenica massacre – highlights how an international standard of responsibility to protect had not yet fully emerged on the global stage; its proponents were weak, and its application half-hearted and timid. It is true that peacekeeping forces were allocated by the United Nations protect Bosniak civilians, however, their inaction speaks to the fact that the United Nations, and the states controlling it, were not under the impression that the responsibility to protect civilians extended all the way to military intervention to the point that they felt obligated to break the norm of state sovereignty and engage directly with the Bosniak Serbs. As stated by Sikkink and Fennimore, norms “never enter a normative vacuum but instead emerge in a highly contested normative space where they must compete with other norms and perceptions of interest;” in this case, the norm in competition was state sovereignty. There were motions on the part of individuals who could be seen as “norm entrepreneurs,” like Shashi Tharoore, who is the US-based leader for peacekeeping operations in Yugoslavia. These motions called for more expanded intervention, “even if such actions entailed calling in NATO airstrikes.” However, the majority of those with the capabilities to pressure the UNSC to engage more directly in the conflict on behalf of the citizens being slaughtered had not yet been convinced that R2P should override the sovereignty of Bosnia. As stated by David Rieff in his article damning the inaction of the UN, the “firm and long-standing United Nations tradition of peacekeeping rooted in international law, impartiality and procedural objectivity,” turned out to be a tradition of peacekeeping so apolitical, it failed to uphold the key tenets of the UN Charter. Luckily, this disaster proved to hold some positive implications for the promotion of the norm of R2P. As part of the post-conflict reconciliation process, the UN itself released a report questioning if it could not have done more to protect the innocent civilians killed in Bosnia. They state “it is true that UNPROFOR troops in Srebrenica never fired at the attacking Serbs. Had they engaged the attacking Serbs directly it is possible that the events would have unfolded differently.” Here, an example of a shift in the position of a leading influence such as the UN with regards to a specific norm can be seen. The cries of outrage on the part of many in the international community serve to show how norm entrepreneurs were able to effectively re-characterize the UN’s action as an “inappropriate” response to the issue at hand and sow the seeds for a more comprehensive acceptance of the suppression of state sovereignty in the name of peacekeeping operations. This report, written in 1999, can be seen as something of a “first draft” of the “Responsibility to Protect” doctrine, signed unanimously by all UN member states in 2005. As stated by Sikkink and Fennimore, “in most cases, for an emergent norm to reach a threshold and move toward the second stage, it must become institutionalized in specific sets of rules and organizations,” and the R2P doctrine was just that. The fact that this document, in which state sovereignty was challenged for the first time as a conditional privilege, was signed unanimously proves it to be the symbolic, as well as rhetorical “tipping point” for the norm of R2P into its second phase: norm cascade. The first case that truly represented an attempt to implement the norm of responsibility to protect, as laid out in the 2005 doctrine, and was universally supported (at least at first) by much of the legitimized international community, was the case of Libya in 2011. As stated by Roland Paris, this effort to intervene “provided the first major test of R2P’s most coercive policy instrument: large-scale military intervention, against the wishes of the target state, in order to protect civilians from the threat of mass atrocities.” In March of 2011, after months of less invasive measures were attempted, the UN Security Council adopted Resolution 1793, calling for airstrikes to be carried out by NATO under the justification provided by R2P. Finally, the norm of R2P had reached the second phase of its life cycle: it’s application as supported by all members of the international community as a way to test out, legitimize, and institutionalize its status as a norm. However, as the mission quickly expanded into one more clearly resembling “regime-change” than humanitarian intervention, many important countries, namely China and Russia who had both abstained to vote on the Resolution, pulled their support, condemning NATO’s actions as “overreach.” While this mission may have been something of a failure on the part of the international community to successfully invoke R2P, it is not so much a failure of the inherent characteristics of the norm of R2P, but rather of its application. As stated above, a norm in phase two of its life cycle is still recognized for its potential to account legitimacy in the eyes of the global powers; at this time, “state leaders conform to norms in order to avoid the disapproval aroused by norm violation and thus enhance national self-esteem.” As it has not quite been internalized as a standard that must be followed in all circumstances – it is still a tool for states to mold and apply selectively as they see fit. Once its application no longer fits with their own interests (as was the case here), states still feel as though they are able to pull their support for it without receiving backlash from the international community for directly violating the norm themselves. Had R2P been in stage three of its normative life cycle, the states who withdrew support, regardless of whether that withdrawal was reasonable or not, would have been ostracized, maybe even punished, for going against what all states thought to be an inherent, morally incorruptible norm. Secondly, as stated above, in order to become a fully formed norm, R2P must supersede the other theories in its way. The fact that R2P must overcome the strength of the norm of state sovereignty – one that has existed for almost 500 years – posits a great challenge towards its success, and while states may have signed a doctrine labeling its status superior, in the same way that such a doctrine does not immediately represent the creation of a fully formed norm of R2P, it does not immediately confirm the collapse of the norm of sovereignty. According to Sikkink and Fennimore, “to challenge existing logics of appropriateness, activists may need to be explicitly “inappropriate.” While perhaps unethical, and extremely damaging, the drastic measures accorded by NATO in the case of Libya could be seen from one (albeit controversial) perspective, as simply a form of such “inappropriateness,” requisite to prove the extent of sacrifice made on the part of those involved to uphold the norm of R2P. In this way, although the Libya intervention is seen mostly as a failure, this is due for the most part to the fact that those critiquing it are not analyzing R2P as a norm still in its second phase, but rather as a fully formed one. That being said, the responsibility to protect does currently face a great obstacle with regards to its complete evolution into an internalized norm that again comes from the structural weaknesses that surround the norm of R2P, rather than from a failure of the norm itself. The fact that the implementation of R2P can decisively be enacted – or blocked – by the UN Security Council leaves its application up to an inherently politicized body. The veto power accorded to the permanent five (P5) members of the SC, Russia, China, UK, US and France, allows these five states an undue amount of influence over R2P’s future as a normative standard; they can choose when and where it can be executed, and have the power to block its use in cases where it does not fit with their goals. Fennimore and Sikkink define in their article what they call a critical state; “What constitutes a ‘critical state’ will vary from issue to issue, but one criterion is that critical states are those without which the achievement of the substantive norm is compromised.” In this case, the entire structure of R2P is in danger of being corrupted by the fact that all five states accorded the power to limit R2P’s applicability are critical states, and if even just one of them does not approve – for political as well as moral reasons – R2P is limited in its ability to prove itself as a norm worth internalizing to the international community. In order to cross over into the final phase of its life cycle, R2P must be free to be accepted as such by all, a process which rests on proof of its success, and any measure that puts roadblocks on such a process in the name of personal and political interests’ damages R2P’s chances of being fully accepted. Such a problem is currently being exhibited in the United Nation’s inability to invoke R2P in Syria. Although there is very clear evidence that a major violation of human rights is being executed by Bashar Al-Assad on his own citizens, the international community has yet to take any decisive action in the name of intervention, holding severe consequences not just morally in the name of the civilians being murdered, but also in R2P’s evolution towards its final phase. Since 2011, 8 draft resolutions calling for the SC to act in Syria have been vetoed; Russia and China voted no them all. Such a blatant display of politicized promotion of self-interests over the expansion of the norm of R2P underscores the problem with allowing the norm’s development to be controlled by a body that accords some states increasingly greater rights than others. Akbarzadeh and Sabah highlight how John Bellamy considers Russia’s invocation of the veto to stem from “Russia’s significant economic and strategic interests in Syria,” and that it is “these Syria-specific factors that underlie the Security Council’s paralysis over Syria, rather than more generalized concerns about R2P and the experience in Libya.” This argument supports the claim that it the Security Council, and not any structural problem with the norm of R2P itself that is preventing its invocation in Syria; Russia would block any measure putting its own interests in the region at risk, whether that is relating to R2P, or a nuclear proliferation resolution, or a trade agreement. However, while this theory takes the pressure off of R2P in terms of what is to blame, it also highlights the fact that R2P will not be able to enter its final stage until it is no longer reliant on a body such as the SC who is so greatly influenced by individual interests. While a norm is still in the norm cascade phase, critical states still have the ability to influence global perception of said norm, meaning that Russia’s continuous blockage of R2P’s use in Syria is slowly but surely convincing other states not to support it as well. In this sense, the case of Syria highlights the fact that in order for R2P to fully complete its evolution into a norm in international relations, it must separate its implementation from the politicized Security Council. Conclusion: Looking Forward Such a process of separation will be extremely difficult to complete: at this point in time, the Security Council is the only body accorded under international law with the ability to legitimately invoke the use of force, and is thus the only body in the position to spur military intervention in the name of R2P. A better solution would be not to remove R2P from the SC’s mandate altogether, but rather to nullify the P5’s veto power – at least when it comes to the responsibility to protect. While this is a drastic proposal, it is supported by the fact that if R2P were truly to become a completely internalized norm, theoretically, states would be willing to renounce their veto power in order to implement it, due to the fact that it would become such a “no-brainer” to support measures of R2P, that either they would not feel the need to have the veto power in the case of R2P, or political pressure from other countries existing within the normative framework of R2P to relinquish it would be so strong, they would have to. This would allow R2P to be invoked only in cases necessary; states would still be able to vote on it, and if it was decided R2P was unnecessary or inappropriate it would not be used, but if one state only did not support it for political reasons, they would not be able to hijack the entire process. Unfortunately, until the barrier imposed by the veto power on the Security Council is abolished, R2P will not be able to extend to its last phase of becoming a fully formed norm. As seen in the case of Syria, the power of critical states such as Russia through the veto power to hijack the ability of R2P to be implemented – and thus prove to the international community its worth as a norm – is the last major obstacle the responsibility to protect must overcome in order to complete its life cycle. Works Cited Akbarzadeh, Shahram, and Arif Saba. “UN Paralysis Over Syria: The Responsibility to Protect or Regime Change?” International Politics . 2018. Press, Associated. “Deaths of Venezuelan Protesters Appear to Be Targeted Killings, Rights Groups Say.” NBC News. February 20, 2019. www.nbcnews.com/news/latino/human-rights-groups-say-deaths-venezuelan-protesters-appear-be-targeted-n973651?icid=related Finnemore, Martha, and Kathryn Sikkink. “International Norm Dynamics and Political Change.” International Organization vol. 52, no. 4, 1998, pp. 887-917. “Nearly 900 Killed’ in DR Congo Clashes.” BBC World News, sec. Africa. December 7, 2019. www.bbc.com/news/av/embed/p06vwdrc/46896159 Paris, Roland. “The ‘Responsibility to Protect’ and the Structural Problems of Preventive Humanitarian Intervention.” International Peacekeeping , vol. 21, no. 5, 2014, pp. 569-603. Rieff, David. “The Institution That Saw No Evil.” The New Republic . 1996. UN General Assembly. “Report of the Secretary-General Pursuant to General Assembly Resolution 53/35 - The Fall of Srebrenica.” United Nations: United Nations General Assembly, 1999. “UN: Recent Myanmar Army Attack May Have Killed Dozens of Rohingya.” Al Jazeera . April 9, 2019. www.aljazeera.com/news/2019/04/myanmar-army-attack-killed-dozens-rohingya-190409062501653.html

The Brown University Journal of Philosophy, Politics, and Economics (JPPE) is a peer reviewed academic journal for undergraduate and graduate students that is sponsored by the Political Theory Project and the Philosophy, Politics, and Economics Society Program at Brown University. The Brown University Journal of Philosophy, Politics & Economics *FEATURES * FROM Nicola Sturgeon, MSP First Minister of Scotland Gen. John R. Allen President of the Brookings Institution Editorial board forward Volume I Issue II Introducing the second issue of JPPE Click to flip through the journal and see previous JPPE issues Philosophy Moral Manipulation Politics Transparency and Compliance A Kantian Take on Advertising and Campaigning The Strength of EU Lobbying Regulations By Sylvia Gunn By Abigail Borges Philosophy Health/Disease Distinction And Its Normative Uses Economics Vermont Act 46 Implications for School Choice By Margot S. Witte By Quinn Bornstein Politics Georgian-South Ossetian Conflict Philosophy Statelessness Is Secession a Viable Solution? A Contradiction in International Law with Asymmetrical Regional Solutions By Tathyana Mello Amaral By Samantha Altschuler Politics Imagined Isle Economics Public Funds, Private Interest The Role of Private Companies in Shaping US Cybersecurity Policy Irish Catholic Identity in the Restoration Era By Nathan Mainster By Justin Katz

*Feature* JPPE INTERVIEW, PASCUAL RESTREPO: Pascual Restrepo is an assistant professor at Boston University. His research focuses on the impact of technology on inequality, as well as labour markets and economic growth. Prior to joining BU’s faculty, he was a Cowles Foundation Fellow at Yale University, and earned his PhD in Economics at MIT. Besides research work, he has given numerous lectures at conferences, workshops and seminars across the country. October 2020 JPPE: Hi, everyone. I'm speaking right now with Professor Pascual Restrepo, who is an Assistant Professor at Boston University, whose research focuses on the impact of technology on inequality, as well as labor markets and economic growth. Hi, Pascual. How are you? Restrepo: Hi, Julian. How are you? Thanks for inviting me. JPPE: Thanks for taking the time to speak with me. So, the first thing I wanted to talk about is how you got into automation and inequality, and I saw that in your earlier work you tended to focus on the illicit economy--and from what I could tell, within that, the illicit economy in Colombia. And I wanted to know how you shifted from that towards automation and inequality. Restrepo: Yeah, absolutely. So I'm from Colombia, you know, and when I was doing my undergrad, I started doing my undergrad in mathematics, but then I got interested in economics. And the key topics in the public discussion in Colombia was always about violence, always about state capacity, always about corruption and political economy. And at the center of all of that, you always have these big illegal markets that were reinforcing, if not causing many of these things. So as a Colombian, it's natural to be interested in that, because it's a topic that is very close to our hearts, our history, and our future. And that's why I started doing research on that topic. Then when I moved to the US to start my PhD, the focus shifted a little bit. I guess that doing a PhD is a great opportunity to start seeing the world from a more global perspective, perhaps, and so I became more interested in problems that were perhaps not as important for Colombia. I mean, Colombia, I wouldn't say right now that automation, it's a big concern there. There's a lot of inequality, but for very different reasons. And so I became interested in these topics that I saw were very relevant for the developed world. And so I think that it's kind of nice that you get to do research on topics that you hear people talking about, right? So like, you open a newspaper, you read The Economist, and they're always talking about, you know, automation, inequality, technology, and so on, but when I was in Colombia, it was the case with illegal markets, so I guess that I'm just trying to follow that trail. You know, like, interesting stuff. JPPE: So the shift towards a more global topic, with far-reaching implications. So, do you remember, was there a specific thing that you read? That made you interested? Do you remember the moment when you thought that this is something you wanted to focus on? Restrepo: Yeah, I don't think that it was anything specific. I just think that it was like an accumulation of stuff. And you know, when I was starting my PhD, there was all of the fuss about Artificial Intelligence. Everyone was fussing about what it was going to be. And I was, like, listening to podcasts by, I don't know, Sam Harris and other people, or the book by Yuval Noah Harari, and I started reading all of these things, and I was like, "Oh, this is super interesting, I wonder if you can analyze this from an economics perspective," right? JPPE: Right. Restrepo: And then, like, Daron--who was my advisor--and Daron apparently was also super interested in this thing, so we started this collaboration. JPPE: Yeah, yeah. So, I- and I think that this is one of the things that is so interesting about the topic, too, is that it is something that gets discussed in these journalistic spheres like The Economist or more central, mainstream publications, but also in academia. And also in a slightly more sensationalistic way by futurists and so on, because the name 'Artificial Intelligence' is kind of, you know, some people think of Blade Runner, or cyborgs walking down the streets. So I think cutting through that is very interesting, which is why one thing I did want to ask is where you stand on the question of automation. And I have four or five studies that you wrote that I just wanted to briefly mention, in case some people aren't familiar with that. One is a piece that you co-authored called "Demographics in Automation," where--and correct me if any of these takeaways are wrong, but--you showed that robots tend to substitute for middle-aged workers. In the paper "Automation of New Tasks," you showed that there is a reinstatement effect of labor, these new digital, labor-saving technologies. In "Competing With Robots," you showed that the overall impact of robot adoption on an industry tends to reduce the employment in that same industry--the number of jobs, at least in the short run. And in "Unpacking the Skill Bias," which I believe is the most recent paper you showed that there is this powerful impact on inequality, and that there is a reduction in real wages. And that productivity increases might not even be that high relative to inequality, which I thought was a very interesting point. So to the extent that you can, where do you stand on automation and AI? Restrepo: Perfect, so let me try to reframe this question a little bit. One of the questions that you sent me earlier on--and feel free to tell me if you're going to discuss it later on, or where this is a good moment to discuss it, because you asked what's wrong with public discourse about automation, right? JPPE: That was my next one, so we can do that now. Restrepo: Perfect. So I guess that what would be useful for me is to tell you how I see public discourse, and where I see myself into the public discourse, and why I think that some of the perspectives that Daron and I have brought are different from the main views that you would find out there, right? Because you see that you are asking me where do I stand on automation. And I think that that's part of what's the problem with this topic, is that people want to divide themselves into two groups. There's kind of a false dichotomy, so either you believe in the robot-apocalypse: you know, robots are going to come and are going to take over all of jobs or you are a firm believer that this has happened before, and that we have already seen this, and technology is great, and nothing is going to happen. And I think that the reality's in the middle. Undoubtedly, technology is the only thing that has allowed us to achieve our standards of living. But I also think that there's no denying that technology sometimes achieves that at the expense of some groups of society. And I think that that's where I stand. Technology is a great force. Technology allows us to live better lives. But some technologies--not every technology, because technologies are all so different, right? Like, I wouldn't say that automation is the same thing as inventing new products, right? Those two things do different things. Some technologies, like automation in particular, have this peculiar feature that the way that they generate productivity--that the way that they generate additional capacity to produce--is by substituting very specific types of human labor. And those workers that get replaced and that get substituted, from their perspective, technology is a bad thing. Socially, technology is a good thing, but there are going to be losers--net losers. And I think that my thing is just to put the spotlight on those losers, and try to identify them and quantify those losses. The idea that technology generates winners and losers--I mean, people have that around, but we tend to think that the gains are so large that this is okay, we just need to redistribute. I don't know, the losses sometimes might be much more problematic than what you can compensate for with the gains. JPPE: Right, certainly. I think even in the way that people phrase it: 'short term losses,' 'disruption.' Some people might say that there's a slight underselling of what the human costs of that disruption are. But I wanted to ask about whether or not AI is fundamentally different in your view, because you said it's somewhere in the middle. And it sounded like you were saying it's not going to be "a temporary loss of some jobs, but it's fine because we'll create new ones" or "a complete joblessness apocalypse." It might be somewhere in the middle. And that seems to me very much in line with what past labor-saving technologies did during the Industrial Revolution. You know, the classic example where you had a spike in the automation- or, a spike in labor-saving devices that increased inequality in the short run--and we can talk about the extent to which that was tolerable--but in the long run, those jobs came back. So do you think that it is fundamentally different from how devices in the past performed, or is it in line with that history? Restrepo: Perfect, so that's a great question. You know, we talk a lot about Artificial Intelligence, but we don't really know what it does. Right? JPPE: [laughing] Yeah . Restrepo: Right, so I can talk about technologies that I know what they do. So for instance, automation of manufacturing via industrial robotics, or automation of white-collar jobs via software, right? So let's just start there, and then we'll speculate a little bit more about AI. So I think that industrial robotics and automation of white-collar jobs via software--the economic forces are very similar to what we saw in the past, let's say, with the mechanization of agriculture. Or the mechanization of textile production in England during the Industrial Revolution, right? You have very artisanal techniques where it took a bunch of people, kids and women, to weave and knit a particular piece of clothing. And then you come out with these machines where you just need one person to operate the whole machinery, and essentially what you did is you replaced all that artisanal and labor-intensive technique that used to be the main technique before. Like with agriculture, you see the same thing, right? Before it was like people with rudimentary tools, such as a scythe, or whatever who would reap the land. And then you have a tractor, right? And the tractor, there's just one person; and that person, the only thing that he has to do is drive the tractor. Nowadays they don't even need to drive the tractor, because these tractors are becoming increasingly self-driving tractors. And so, you can see that, essentially, we are moving to technologies that are more, more, more capital-intensive and that rely less and less and less on human labor. And I think that the consequences, to some extent, are similar. So like, many people say, "Oh no, we have a lot of mechanization in history, and we still have a bunch of jobs, so that's not bad." But then you look at historical records; that argument is not exactly right. Because for instance, England around the Industrial Revolution, there were about 60 years where wages were essentially stagnant. So yes, this technology created more bounty, they created higher incomes per capita, but most of this income went to the hands of capital owners: people who owned the machinery, people who owned the land. And those gains didn't trickle down to wages until after 60 years of these developments. 60 years is a long time. During these years we had a lot of unrest. We had many, many social reforms to appease, some of the unrest that resulted from these. We had the Luddites, right? That was kind of a response to all of these developments. So, you know, it was not a rosy- it was not an easy transition. Now, of course, that puts us into a fantastic path where eventually, people acquire skills; we came out with new industries, products, and so want to employ a bunch of people. But that was kind of like a choice, right? I mean, maybe that wouldn't happen. And so I guess that that's the next question: what are we going to be able to come out with? The jobs, the ideas, the tech force, the tasks, or all of the people that we displaced from manufacturing and all of the people that we are displacing from services. I mean, what are we going to employ all of these people, right? And perhaps, what if the future is one where we're going to have fewer jobs? JPPE: You really think that there's a chance that the future could look like, on aggregate, there are fewer jobs that the economy requires. Restrepo: Yeah. JPPE: So in essence, the whole principle of efficiency gains creating jobs in new industries, that that principle might break down. Restrepo: I mean, I think that that principle has worked in the past, but the fact that it has worked in the past does not guarantee that it's going to keep working in the future. I think that at least theoretically, conceptually, I mean, it's possible. I'm not saying that it's going to happen, but it's possible that we go into a future where the economy uses less labor. So you know, like, only 20% of the population works, and that's enough to supply all of the labor that the economy needs. I mean, this is a great thing if all of us only work one day per week. But the problem is that we might be going to a future where only 20% of us work the entire week. And that's very different because the implications for inequality are quite different, right? So I guess that that's kind of the challenge. The challenge to me is not so much whether the level of employment that you need to produce something is going to go down--for sure that's going to go down. I mean, we're going to produce much more with fewer workers. The question is, who's going to provide those hours of human labor, and who are the people in a position to benefit from that demand for labor that's going to be out there? JPPE: Mm. So, I'd love to talk more about the social and political implications of what you just said, but first I want to ask about a pandemic-related question. Restrepo: Yep. JPPE: So, The Wall Street Journal just ran a headline where they said that, essentially, meatpackers were, all of a sudden, beginning to automate more and more labor, and that that automated technology was not necessarily doing as good a job as the humans were, but the coronavirus had essentially hastened that shift. And I believe there are other instances of that in manufacturing as well. So is this something that you view as bringing automation much faster? Restrepo: Totally. One of the papers that you mentioned earlier on was this paper on demographics. And in that paper, what we showed is that a lot of what you see in terms of industrial automation--that is, automation by industrial robots and machinery in car manufacturing plants, for example--is driven by the scarcity of work. This is technology that responds to incentive. So what are the most automated countries in the world? Japan, Germany, Italy, countries where the population is aging very rapidly--where young workers with the muscle to weld a car are scarce. And so it's that scarcity of labor, in some sense, what has fueled a lot of this automation. And you can think of the pandemic as doing something similar; it's generating a scarcity of labor. Because workers--on the one hand, they cannot go to work because of either concerns or lockdown measures--but also, there's also some safety measures that might make some automation technologies more safe than human workers, right? So there's an element of that. On the other hand, you know, this pandemic also gave me another reflection that many of us- or, many people thought that humans were already kind of obsolete, and humans were no longer needed, and this pandemic kind of made me revisit that view because it does suggest that humans are still extremely important for the country. JPPE: [laughing] Yeah. Restrepo: Extremely important, right? You take out the human element, and the economy completely gets destroyed. JPPE: And human contact too. Restrepo: Yeah. Absolutely. So, you know, it's not only about production, but so much of our economy is about humans interacting with other humans, and human contact that- it also kind of gives me some pause. Yeah, maybe, sure, maybe we're going to automate a lot of jobs, but maybe there's- you know, the economy's increasingly becoming more intensive in the sort of activities that, by their nature, they're just not automatable. Or we don't want to automate them because the quality of the goods that we are consuming then, they're dependent on human interaction, right? JPPE: Mm. And certainly I think there are instances- I mean, the skeptics that I've talked to about AI have definitely brought up instances; they'll pull up a treasure trove of articles where someone says, "We can now automate kindergarten teachers." Restrepo: Exactly. JPPE: And then we could do some polling on the number of moms and dads that would be happy with a robot teaching their kids- or, their kindergarteners. Restrepo: Yeah. Absolutely. JPPE: [laughing] But, so, I did want to ask more about the social and political side of this as well, and I don't mean to be flippant with this question, but I wanted to know why inequality is necessarily a bad thing. Restrepo: Great. I think that that's a great question, and I think that the answer is that it's not necessarily a bad thing, at least in my mind. Let me tell you the feature about current inequality that I think is absolutely a bad thing. I think that the problem with current inequality is not- I mean, you can have inequality for two reasons. You can have inequality because everyone's incomes are growing, but some incomes are growing much more rapidly than others. Right? Maybe there are some political, philosophical, or ethical reasons to be opposed to that type of inequality. Okay. But there, I don't think there's a very strong argument that everyone should agree that that type of inequality is very bad. Because that type of inequality might reflect, "Oh, maybe the people whose incomes are growing more, it's because they started a business." Right? You know, like Bezos. But Bezos has- is like a billionaire. But I would say yeah, if you ask me, I think that--well, maybe I'm more stating my case here, but--yes, he deserves to be a millionaire because-and a billionaire, because the product that he created delivers a lot of value, right? So I think that there's a chunk of inequality that is good and that I'm not opposed, at least, in terms of first principle. But. I do think that the nature of contemporary inequality is very different from that story that I was telling. Contemporary inequality is not just about some people who came up with great ideas, and their incomes grow a lot, and all of our incomes kind of grow just if we happen to work hard, and so on. Contemporary inequality, if I had to describe it, has this feature that we see groups of society who are worse off than before. So it's not just how incomes are growing. It is that some incomes are falling in real terms. And for me, that is something that is just... the biggest contemporaneous problem. That we have people who are worse off than their parents, than their previous generation. So if, in the U.S., you are a person who has high school or less than a high school degree, who comes from a poor background, actually your parents were better off than you in terms of labor market income. And that's kind of the scary aspect of inequality, that it's not even progress, but sometimes it means no progress at all for some society. That's the reason that makes me worry. And those groups, of course--I mean, that's going to have political implications, everything. But just from a humanity perspective, I think that as a society we can afford- I mean, we should aspire for trying to make everyone gain from technology, everyone gain from globalization, there shouldn't be anyone who is worse off than a person like him or her 30 years ago. JPPE: Mm. Mm. Yeah, and so, I mean, there is the data from Thomas Piketty and Emmanuel Saez that tries to quantify how that inequality is today; and from what I have seen, it shows that it's roughly where it was at in the early 20th century. And so when you think about automation in conjunction with the general financialization of the economy, the rise of private debt, the extension of credit in the economy, do you feel like now is a particularly vulnerable moment for a shock to inequality through digitally-enabled automation? Restrepo: Yeah, absolutely. I think that part of the problem is that there's no safety net in this country. I mean, the safety net is kind of like- I mean we are seeing that with COVID, right? There's people whose finances are in an incredibly vulnerable position. And so imagine that you're in your 30s, you're in 40s, you have some debts, you don't own a lot of assets, and then they come out with this software that can do exactly what you're doing at your work, right? You are screwed! There's nothing you can do. JPPE: [laughing] Yeah. Restrepo: And then we turn to economists and the economists said, ‘no, because people can re-train, and people can relocate, and we're going to take that person and make that a coder, right? Or a software engineer.’ That's not going to happen! That's kind of like a lost generation there. And I think that we should care more about that potentially lost generation. JPPE: Mm. And in terms of reducing inequality, I actually- a month ago, I got to speak with historian Walter Scheidel on his thesis and The Great Leveler, that inequality only gets reduced or leveled by mass military mobilization, civil war, plague, or government collapse. And what was so striking about reading his book and talking with him was, it seemed to--on some level--be in opposition to a lot of the language in economics that seems to frame inequality and shocks as almost cyclical in nature, where there's a short run and a long run. And it seemed like Professor Scheidel's point was essentially that actually, there's been these exogenous forces in the form of, essentially, catastrophe, that have reduced inequality. And I'm wondering what your thoughts are on that. Restrepo: Yeah. So I think that for economists in general, I wouldn't say that inequality's just a cyclical phenomenon. I mean, if you read the labor economics literature, there's a lot of literature kind of emphasizing these trends and it's long-run trends. So like, over the long run, what we are seeing is that someone who has a college degree is earning much more than someone who does not have a college degree. And that just keeps expanding and expanding and expanding, and decelerated a bit and so on. But you know, there are these big trends. I wouldn't say that it's only about shocks. But I do think that economists emphasize much more the role of technology than politics. Right? I mean, there are some fields in Economics that emphasize much more the role of politics, and I think that in these shocks that you're mentioning, what needs to happen is a big shock, so that it triggers political reform, and so on. And that perhaps hasn't been so much included into the language of economists. The other thing that I would like to say is that, while I think that thesis is kind of interesting, you also see a lot of variation across countries. When you look at the data that are countries that technology is kind of universal- I mean, I was telling you about, you know, the Germans were the ones who invented industrial automation, same as Japan. And they don't have as much inequality as we do here in the U.S., right? That's also kind of a choice; I don't think that you need to have a war to reduce inequality. But you need to have more progressive taxation, and I mean when you think about inequality, that's the first thing that you should do! I mean, it's very simple. I mean, simple, technically. Politically, it might be difficult, but the solution is clear. JPPE: Right. And so, what do you think about proposals like a universal basic income, or a progressive basic income, or any variation of that? Negative income tax, and so on. Restrepo: Yeah, I think that anything that looks like a negative income tax, I think that would be greatly beneficial. Anything that looks like an earned income tax credit, that is subsidizing work for low-wage workers would be very beneficial. Also because it helps convince firms not to automate those jobs, so part of those jobs are subsidized. Anything like a universal basic income, I mean, I think it's- again, I like the idea; I don't like the idea of a universal basic income essentially substituting the whole safety net. I think that still having a government that buys insurance and that supplies all our programs that are more targeted to whoever it's useful. But I think that the spirit of all of these things is the same. We need a better safety net, right? And so, if you implement it one way or the other; if politically this is more feasible than this...I don't know. I'm fine. I just think that we do need some more safety net. JPPE: Right. So the last question I wanted to ask is: looking to the future, what are some open questions that you think would be really interesting to look at, either on inequality alone, or on automation and inequality and so on? And also, if not questions, some areas of research that you think, thus far, have been untapped. Restrepo: Perfect. So let me start with the first one. I think that one of the things that I find more puzzling about current technologies is that if you look at the labor market, you would conclude that there is a lot of disruption. You would conclude that there's inequality; the prices of different skills are changing the nature of jobs is changing; the types of jobs that we are posting are changing the skills that the labor market is valuing are changing. From looking at that, you would think, "Oh, technology is advancing at this amazing pace," but when you look at productivity, there's not a lot of productivity growth. And you know, this lack of productivity growth has been used by many to argue that automation, or that technology, is not a concern. So like, I saw that you did an interview with Paul Krugman at some point. JPPE: Yeah. He brought it up. Restrepo: Yeah, and I think he made that point. And I think that that point is kind of misguided. Because I think that one of the interesting things about automation technologies is that--and you already mentioned that this is something that we emphasize a lot--is that you can have automation without big productivity gains. And let me just give you an example of why that is the case. Imagine that I'm a worker working in a supermarket checkout machine, right? And then someone comes and invents a self-service kiosk, or whatever, right? That innovation is going to substitute me; but in terms of cost, how much is it going to reduce the cost for the supermarket? Very little! Because the worker was already very cheap; the machine itself is very cheap, but not as much! Right? Installing all of the equipment, programming, all of that--at the end of the day, the productivity gains is, I don't know, 1%? Something even smaller than that, that's just a small part of the cost? So at the end of the day, you unroll this technology, you deploy this technology, you substitute all of the checkout clerks, right? So that's a chunk of the population, and what are the productivity gains from doing that? Not that big. They're not that big; it's just like, you saved a little bit on costs. So automation has this thing that as long as you save a little bit on costs, you're going to adopt it. So you can have the adoption of a lot of automation technologies that have very small efficiency gains. And I think that that principle has escaped current discussions about automation. People equate productivity or technology with automation. Automation is just one particular type of technology--concerning one particular component of productivity--that has this feature that it can generate big distributional impacts just by having small productivity gains. But I think that the interesting research question there is to try to understand, why are we adopting automation technologies that have such, very low productivity gains? And that our candidate- one candidate is perhaps taxation. Maybe we're doing this because we're taxing labor a lot so that's inducing us to adopt more automation, even if that's not very profitable, from an engineering perspective. Or maybe it's a cultural thing. So I think that those are the big, important questions. What determines the direction of technology? Are we going to keep focusing on automation, automation, automation? Or are we going to have a more balanced element of technologies that, in the long run, it's going to end up being more beneficial for all of those people--that I already discussed--that have experienced net losses in their income in the last 30, 40 years? JPPE: Professor Restrepo, thanks so much. Restrepo: Thanks. Thanks for having me, Julian.

Transparency and Compliance The Strength of EU Lobbying Regulations Abigail Borges Brown University Author Miles Campbell Audrey McDermott Sydney Munro Editors Fall 2018 This essay discusses the outright robustness of the European Union's lobbying regulations in comparison to the regulations in the EU countries, concluding that it is on par with or surpasses regulatory strength in the states. The interactions between politicians and lobbyists present a challenge to governments’ transparency and accountability, and affect supranational entities like the European Union. Before evaluating a lobby’s influence, it is necessary to understand what exactly defines these groups and how they interact with governments. ‘Lobbyists’, which will be used synonymously with ‘interest groups’, are defined as those seeking to influence the outputs of a given policy-making process. Lobbyists attempt to support their interests by affecting policy outputs through methods like maintenance of a status quo or the implementation of a new policy. In response to lobbyist manipulation, recent policy trends have been in favor of controlling lobbying by creating level playing fields for interest groups to operate. Such policy trends include an expansion of the European Union’s lobbying rules over time. In 1996, the European Parliament introduced provisions for simple yearly passes for lobbyists seeking access to the Parliament building. The European Commission implemented its own rules that likewise lacked teeth in 2008 by instituting a voluntary lobbyist register.[1] The bodies’ recent replacement regulation, the Joint Transparency Register (JTR), has prompted a re-evaluation of the EU’s robustness in terms of lobbying controls, especially when considering the precedents set by national governments. Scholars in the field take robustness to mean “the capacity of the regulation to increase transparency and accountability,” which reflects the rules’ level of usage and reliability.[2] Though there is certainly room to strengthen its provision of regulations regarding lobbyists, the EU is holistically and comparatively more robustly regulatory than EU member nations in managing interest groups. This lead is earned both by having regulations in the first place and by these rules’ ability to equal or surpass the robustness of lobbying regulations in the EU’s member states. First, a brief overview of the implications of the JTR for the EU and its lobbyists is necessary to more clearly understand how the regulations imposed by the JTR compare with the regulations enacted its constituent states. The JTR’s stated goal was to increase transparency, replacing regulatory structures in the Parliament and Commission for a joint registration for all lobbyists.[3] Transparency and accountability are the two main goals associated with lobbying regulation. These standards aim to let voters know who influences whom and allow them to see the degree to which a given politician or lobbyist is responsible for a policy. The EU’s definition of a lobbyist expanded “to include law firms, NGOs, think tanks - indeed any organization or self-employed individual engaged in influencing EU policy making and implementation.”[4] This expansion ensures that no agents seeking to affect policy can find a loophole or excuse to avoid the option of registering for the JTR. The most crucial detail about the JTR in this sense is its voluntary nature: since it allows the option for groups not to register, one can question the extent to which such a transparency register can be effective. Still, the JTR did strengthen disclosure provisions and data accessibility with measures such as necessitating yearly reports on personal and organization information and financial details at the time of register (though notably not in regular reports thereafter). All of this information was then made available to the public online. Finally, registration required compliance with a code of conduct that includes pledges against dishonesty, incentives for disclosure, and mechanisms to handle breaches of the code.[5] Scholars Chari and Crepaz maintain that interest groups have largely complied with the JTR system, suggesting that many of the goals the JTR had in its launch have proven successful.[6] In several ways, the regulations imposed by the JTR are on par with other European countries. In terms of the Centre for Public Integrity’s index of lobbying regulation robustness, the JTR’s regulations fall directly in the middle of the EU nations’ regulation ratings, with a score of 31. Slovenia, Hungary, Lithuania, and Austria received higher scores, and Poland, the UK, France, and Germany received lower.[7] This measure indicates that the JTR is indeed more robust than some, but falls short of others, with almost a twenty-point difference between it and the most regulated European lobby (Slovenia at 49). Notably, the JTR proposes more stringent regulations than the major constituent EU states, suggesting that the EU does more to control the actions of its lobbyists than the national entities that wield much of the power within it. This is especially true for Italy, who has no interest group regulation at all. Additionally, if judging instead by specific provisions of the JTR, the EU’s system again proves to be average in many dimensions. All states mentioned above in the CPI index have a register for lobbyists of some kind, which defines the substance of the JTR. Additionally, provisions like its code of conduct and voluntary nature are mirrored in countries like France and the UK.[8] Like the public lists of lobbyists found in Poland and Germany, the individuals and groups registered under JTR are openly accessible on the internet.[9] These measures all help establish the rules of the game and increase transparency and accountability in the overall process of lobbying. These aims are desirable because they give actors more information and require justification of one’s actions to the public. Thus, the EU and its JTR prove to be just as strong in a range of provisions as the other member states regulating interest groups. As much as the EU is on par with member nations that regulate lobbying, it is distinctly advanced among the other countries in Europe that do not have rules at all. Of the about fifty European nations, including the EU, only nine have enacted laws to regulate lobbying to speak of.[10] Thus, in its implementation of any regulations at all, the EU proves to be ahead of the curve. Some may argue that many of the states lacking lobbying rules do not need them because they do not have the same scope of lobbyists present as those systems with laws; this may be true, but not relevant to the question at hand evaluating outright robustness. Additionally, there have been many calls for increased regulation throughout Europe in general, to achieve the stated aims of increased transparency and accountability. Transparency International, a group centered on fighting corruption, released a 2015 report evaluating lobbying in Europe, its effectiveness, and its future. It concluded that the EU Commission’s rules are among one of only two of the nineteen European entities that score above 50% on its measures of transparency, integrity, and equality of access.[11] The authors also note that only seven of the entities feature any lobbyist-specific regulations, a fact which in the report it finds problematic and wishes to see changed.[12] Hence, the EU already surpasses many nations in its rule robustness simply by having regulations, regardless of what the regulations entail. Still, it becomes clear upon scrutiny that the details of the JTR’s regulation also prove more stringent than those of its European counterparts. This finding is true especially regarding the disclosure of financial information, the level of compliance, and the scope of lobbyists to which the rules apply. The JTR requires an initial submission of information concerning an organization’s spending and activity, and each type of lobbyist must disclose varying levels of financial information at this stage.[13] Though it does not require yearly spending reports, this documenting of finances is equivalent with, or stronger than, all other governments with registers. For comparison, Germany requests no information at all, nor does Poland.[14] Lithuania requires yearly spending and salary reports, which appears more robust than the EU, but compliance with its register is thought to be very low; 2004 estimates place the number of lobbyists registered at about one in seven of those who operate within the state.[15] Austria, too, requests yearly reports, but, similarly, this regulation does not effectively apply to many lobbyists.[16] By these terms, then, the manner in which the JTR requests financial information makes it stronger in interest group transparency, who cannot in theory spend considerable sums of money without at least some documentation. Money often captures influence in government, so it follows that financial disclosures are also significant in terms of accountability at the EU level. The JTR provides an effective medium for this disclosure, unlike most of its peers. Also related to this discussion are issues of compliance levels, for disclosures of any type do not matter if no one complies. In their recent comparative study of the JTR, Crepaz, and Chari found that based on the registration and spending disclosures of the largest corporations seeking to influence the EU, it can be concluded that firms are taking the JTR more seriously, with all examined firms registering and giving seemingly more accurate spending disclosures.[17] Comparatively, this is quite remarkable, as many other registration systems see low levels of compliance. Chari, Hogan, and Murphy find that in Lithuania, Hungary (whose 2003 regulations have been removed), and Poland, regulations are often ignored or maneuvered around, often because the term ‘lobbyist’ retains negative connotations.[18] The 2013 Venice Report on the Role of Lobbying puts forward a similar argument about Germany, explaining that “not being on the register is no real barrier to being in contact with Parliamentary committees or members of the Bundestag.”[19] With ability and ease to get around lobbying regulations, then, the regulations prove somewhat ineffective in Germany as well. Yet, as Crepaz and Chari point out, the JTR has in fact seen increased registration by EU interest groups since its adoption.[20] Low effectiveness in complying with registration could also be related to the scope of lobbyists to which the legislation applies, which in the EU is all activity, but in most other nations is narrowly defined. This scope and compliance indicates success on the part of the JTR in terms of transparency over the aforementioned countries, as it comes closer to the ideal of providing the most information about influence in political systems. Finally, the EU does feature less regulation for lobbyists in some dimensions of transparency and accountability that at first glance makes it seem like the JTR is not very robust, yet in practice this observation proves untrue. The first such category which the JTR lacks is a set of provisions regarding the so-called ‘revolving door’, preventing civil servants from immediately working as lobbyists and vice versa. The JTR fails to prevent such capacity for corruption. However, of the four European nations studied by Chari, Hogan, and Murphy, only Lithuania has these rules.[21] Further, Transparency International explains that most of the countries it studied have some sort of “cooling-off period” for officials, but Slovenia was the only one to implement the period for legislators. And yet, it also reports that none of these countries had “effective monitoring and enforcement of the revolving door provisions,” calling into question the effectiveness of the laws even where they exist.[22] Furthermore, Crepaz and Chari recognize that the EU Commission, top officials, and the EP all have internal revolving door regulations.[23] Therefore, even if the JTR itself does not provide cooling-off periods, the issue is effectively dealt with in other ways, which is not the case for the EU countries that on paper seem more regulated. Despite appearances, then, the EU still emerges with more robust and effective regulations than most, if not all, of its EU counterparts. For its strengths and advances, however, the JTR does have several other comparative drawbacks that leave room for improvement in relation to other European state entities. Primarily, it could make its law mandatory, as Austria and Slovenia have sought to do, to improve relative robustness. Transparency International analyzed the effective impact of Slovenia’s mandatory register and found that it operates on a “wholly inadequate scope covering only a small proportion of lobbyists,” because it defines interest groups so narrowly.[24] An analysis of the Austrian system found similar results.[25] In this way, the EU regulations are still arguably as strong as Slovenia’s and Austria’s laws, because they apply to a much broader scope of lobbyists and are complied with, as evidenced earlier by Chari and Crepaz. This engenders more compliance with and operation within the register in the EU. Aside from implementing a mandatory register, another way the JTR is comparatively less robust involves its sanctions and enforcements, of which it has few. Slovenia, Lithuania, and Austria score higher on the CPI index much for this reason.[26] For example, Slovenia has a Commission for the Prevention of Corruption (CPC) that provides oversight on many types of lobbyists, such as professional, in-house, and lobbyists from private sector interest organizations.[27] Though the JTR has a Secretariat intended to watch activity, its only effective power is naming and shaming, which Crepaz and Chari find especially problematic given the voluntary nature of the register.[28] As always, though, one must keep in mind that although the JTR is less regulated in oversight, its high compliance and the often low enrolment in other countries problematizes deeming the JTR less robust due to its less strict enforcement and sanction rules. Still, in these areas there is room for improvement of the JTR in comparison to other EU nations. Ultimately, on most dimensions the JTR proves generally stronger than, if not at least as strong as, its counterpart laws in EU member nations. In providing a voluntary register, public internet accessibility, and a code of conduct, the EU regulations are in line with the rules of its peers. In fact, in even having a register at all, EU lobbying laws are more robust than the lobbying regulations found in the majority of EU nations. When one examines precedents of financial disclosures, levels of compliance, scope of application, and even revolving door rules, the JTR is arguably strongest among its counterparts in effectively handling them. One must note that the voluntary nature of the JTR and its enforcement mechanisms could be improved considering the rules of countries scoring higher than the EU on the CPI index, even if these rules are not effectively followed. Overall, regardless of the diverse characteristics of distinct regimes, lobbying regulation systems seek to achieve the ideals of transparency and accountability. Considering the totality of the strengths mentioned above, by increasing public access to the entities and insight into their inner workings, the JTR moves the EU much closer to these goals than other regulating systems have proven to accomplish. Still, even if the EU is more regulated, it is not precluded from needing to further strengthen its provisions. A mandatory system of registration, for example, would ensure maximum transparency and accountability through behavioral regulation, as argued by Direnc Kanol.[29] In the realms of financial disclosures and sanctions, too, the JTR could seek improvement by strengthening its policies, further augmenting transparency and accountability. However, the aim of this study was to evaluate comparative, rather than outright, robustness, and by this measure the EU and its lobbying regulations prove decidedly strong. Endnotes [1] Michele Crepaz and Raj Chari, “The EU’s Initiatives to Regulate Lobbyists: Good or Bad Administration?,” Cuadernos Europeos de Deusto 82, no. 5 (2014): 77, accessed December 7, 2016, https://www.tcd.ie/Political_Science/assets/pdfs/eu_lobbyist_regulation_crepaz_ chari_2014.pdf. [2] Crepaz and Chari, “The EU’s Initiatives,” 81-82. [3] European Commission, Commission and European Parliament launch Joint Transparency Register to shed light on all those seeking to influence European policy, 2011, accessed December 7, 2016, http://europa.eu/rapid/press-release_IP-11-773_en.htm?locale=en . [4] European Commission, Commission and European launch Joint Transparency Register. [5] European Commission, Commission and European launch Joint Transparency Register. [6] Crepaz and Chari, “The EU’s Initiatives,” 89. [7] Crepaz and Chari, “The EU’s Initiatives,” 82. [8] Assemblée Nationale, "Interest Representatives in the National Assembly," Assemblée Nationale, accessed December 7, 2016, http://www2.assemblee-nationale.fr/14/representant-d-interets/repre_interet and UKLR, "About the Register," UK Lobbying Register, accessed December 7, 2016, http://www.lobbying-register.uk/about-.html. [9] Deutscher Bundestag, "Public List of Associations Registered with the Bundestag," Deutscher Bundestag, November 24, 2016, accessed December 10, 2016, http://www.bundestag.de/parlament/lobbyliste/ and OECD, Lobbyists, Governments and the Public Trust, Volume 2: Promoting Integrity through Self-Regulation (OECD Publishing, 2012), 62, accessed December 7, 2016, http://dx.doi.org/10.1787/9789264084940-en . [10] Crepaz and Chari, “The EU’s Initiatives,” 82. [11] Suzanne Mulcahy, Lobbying in Europe: Hidden Influence, Privileged Access (Berlin: Transparency International, 2015), 8, accessed December 7, 2016, http://www.transparencyinternational.eu/wp-content/uploads/2015/04/Lobbying_web.pdf . [12] Mulcahy, Lobbying in Europe, 8. [13] Crepaz and Chari, “The EU’s Initiatives,” 79. [14] Raj Chari, John Hogan and Gary Murphy, Regulating Lobbying: A Global Comparison (Manchester, UK: Manchester University Press, 2010), 61, 173. [15] Chari, Hogan, and Murphy, Regulating Lobbying, 75-76. [16] Peter Köppl and Julia Wippersberg, “The State of Public Affairs in Austria,” Journal of Public Affairs 14, no. 1 (2014): 35-36, accessed December 9, 2016, http://dx.doi.org/10.1002/pa.1503 . [17] Crepaz and Chari, “The EU’s Initiatives,” 88-89. [18] Chari, Hogan, and Murphy, Regulating Lobbying, 76, 80, 84. [19] Venice Commission, Report on the Role of Extra-Institutional Actors in the Democratic System (Strasbourg: Venice Commission, 2013), 16, accessed December 8, 2016, http://www.venice . coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2013)011-e. [20] Crepaz and Chari, “The EU’s Initiatives,” 90. [21] Chari, Hogan, and Murphy, Regulating Lobbying, 168, 177. [22] Mulcahy, Lobbying in Europe, 9. [23] Crepaz and Chari, “The EU’s Initiatives,” 80. [24] Transparency International Slovenia, Lifting the Lid on Lobbying - Call for Transparent and Ethical Lobbying (Ljubljana: Transparency International Slovenia, 2014), 35, accessed December 1, 2016, http://www.transparencyinternational.eu/wp-content/uploads/2014/12/TI_SLO_LLL_report_ANG_web.pdf . [25] Köppl and Wippersberg, “The State of Public Affairs in Austria,” 36. [26] Crepaz and Chari, “The EU’s Initiatives,” 90. [27] Transparency International Slovenia, Lifting the Lid, 14. [28] Crepaz and Chari, “The EU’s Initiatives,” 80. [29] Direnc Kanol, “Should the European Union Enact a Mandatory Lobby Register?,” Journal of Contemporary European Research 8, no. 4 (2012): 524, accessed December 8, 2016, http://www.jcer.net/index.php/jcer/article/view/460/371 . Works Cited Assemblée Nationale. "Interest Representatives in the National Assembly." Assemblée Nationale. Accessed December 7, 2016. http://www2.assemblee-nationale.fr/14/representant-d-interets/repre_interet. Chari, Raj, John Hogan and Gary Murphy. Regulating Lobbying: A Global Comparison. Manchester, UK: Manchester University Press, 2010. Crepaz, Michele and Raj Chari. “The EU’s Initiatives to Regulate Lobbyists: Good or Bad Administration?” Cuadernos Europeos de Deusto 82, no. 5 (2014): 71-97. Accessed December 7, 2016. https://www.tcd.ie/Political_Science/assets/pdfs/eu_lobbyist_ regulation_crepaz_ chari_2014.pdf . Deutscher Bundestag. "Public List of Associations Registered with the Bundestag," Deutscher Bundestag, November 24, 2016, accessed December 8, 2016. http://www.bundestag.de/parlament/lobbyliste/ European Commission. Commission and European Parliament launch Joint Transparency Register to shed light on all those seeking to influence European policy, 2011. Accessed December 7, 2016. http://europa.eu/rapid/press-release_IP-11-773_en.htm?locale=en . Kanol, Direnc. “Should the European Commission Enact a Mandatory Lobby Register?” Journal of Contemporary European Research 8, no. 4 (2012): 519-529. Accessed December 8, 2014. http://www.jcer.net/index.php/jcer/article/view/460/371. Köppl, Peter and Julia Wippersberg. “The State of Public Affairs in Austria.” Journal of Public Affairs 14, no. 1 (2014): 31-43. Accessed December 9, 2016. http://dx.doi.org/10.1002/pa.1503 . Mulcahy, Suzanne. Lobbying in Europe: Hidden Influence, Privileged Access. Berlin: Transparency International, 2015. Accessed December 7, 2016. http://www.transparencyinternational.eu/wp-content/uploads/2015/04/Lobbying_web.pdf OECD. Lobbyists, Governments and the Public Trust, Volume 2: Promoting Integrity through Self-Regulation. OECD Publishing, 2012. Accessed December 7, 2016. http://dx.doi.org/10.1787/9789264084940-en . Transparency International Slovenia. Lifting the Lid on Lobbying - Call for Transparent and Ethical Lobbying. Ljubljana: Transparency International Slovenia, 2014. Accessed December 8, 2016. http://www.transparencyinternational.eu/wp-content/uploads/2014/ 12/TI_SLO_LLL_report_ANG_web.pdf. UKLR. "About the Register." UK Lobbying Register. Accessed December 10, 2016. http://www.lobbying-register.uk/about-.html. Venice Commission. Report on the Role of Extra-Institutional Actors in the Democratic System. Strasbourg: Venice Commission, 2013. Accessed December 8, 2016. http://www.venice . coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2013)011-e.

The Brown University Journal of Philosophy, Politics, and Economics (JPPE) is a peer reviewed academic journal for undergraduate and graduate students that is sponsored by the Political Theory Project and the Philosophy, Politics, and Economics Society Program at Brown University. The Brown Journal of Philosophy, Politics, and Economics Volume III, Issue I scroll to view articles Current Issue Philosophy A Gravity Model of Civic Deviance: Justice, Natural Duties, and Reparative Responsibilities Woojin Lim Can You Rationally Disagree with a Prediction Market? Nick Whitaker The Panacea Problem: Indifference, Servility, and Kantian Beneficence Benjamin Eneman Read More Politics We the Prisoners: Considering the Anti Drug Act of 1986, the War on Drugs and Mass Incarceration in the United States Sophia Scaglion Read More Economics Read More State-Owned Banks and the Promise of an Equitable Financial Sector Elias van Emmerick No Place Like Home: Extending the Equity Home Bias Theory to Foreign Portfolio Investment in Emerging Markets Qiyuan Zheng Applications for JPPE Now open! See Available Positions

The Brown University Journal of Philosophy, Politics, and Economics (JPPE) is a peer reviewed academic journal for undergraduate and graduate students that is sponsored by the Political Theory Project and the Philosophy, Politics, and Economics Society Program at Brown University. The Brown University Journal of Philosophy, Politics & Economics *FEATURE * FROM Sheldon Whitehouse U.S. Senator, Rhode Island Editorial board foreword Volume II Issue I Introducing the third issue of JPPE Click to flip through the journal and see previous JPPE issues ECONOMICS Philosophy Two Forms of Environmental-Political Imagination Realism, Perspective, and the Act of Looking Germany, the United States, and the Clean Energy Transition A Comparison of Chinese Cinematic Rep- resentations of the Second Sino-Japanese War By Nathan S. Chael By Isaac Leong POLITICS The Duty to Use Drones Economics A Fair Free Lunch? In Cases of National Self-Defense Reconciling Freedom and Reciprocity in the Context of Universal Basic Income By Lina Dayem By Olivia Martin Economics Philosophy Enhancing Value or Stifling Innovation The Individual Unfreedom of the Proletarian Examining the Effects of Shareholder Activism and Its Impact on American Capitalism By Cal Fawell By Andrew Kutscher and Doug Saper PHILOSOPHY Oedipus and Ion As Outsiders POLITICS Partisan Gerrymandering The Implications and Limitations of Genealogical Citizenship By Claire Holland Re-Establishing the Political Question Doctrine in Gill v. Whitford By Connor Maag

State-Owned Banks and the Promise of an Equitable Financial Sector Elias van Emmerick Pomona College April 2021 This paper will propose that state-owned banks resolve many of the issues facing commercial banks today. To substantiate this claim, it will investigate specific areas where a state-owned bank would produce more favorable outcomes than a commercial bank, trace the steps required to establish such a bank, and evaluate a contemporary example of a state-owned bank, the Sparkassen 1. Introduction The financial sector increasingly takes up space in our economy. What originated as a means to an end (a middleman to collect and distribute funds) has for many become an end unto itself. Top students from prestigious universities across the globe desperately pursue jobs at investment banks, hedge funds, and private equity firms. For example, more than a third of Harvard’s class of 2017 pursued finance or consulting upon graduating. In fact, the finance, insurance, and real estate industries make up one fifth of domestic GDP, more than any other sector. At the same time, this industry has often brought us close to financial collapse. Nobel Prize winning economist Joseph Stiglitz describes the financial sector’s work as being at least partly “rent-seeking”: an economic activity that redistributes wealth (often from the poor to the rich), but does not actually generate meaningful increases in overall economic growth. As an economist would put it, they do not grow the pie, they simply take a larger slice of it. This paper will aim to investigate to what extent state-owned commercial banks could alleviate some of the major issues related to the financial sector we see today, and how they could do so. Subsequently, the paper will detail how the creation of a public bank could happen, as well as evaluate two existing state-owned banks, the Bank of North Dakota and the German Sparkassen. Finally, it will summarize contemporary efforts to establish government-owned commercial banks in the United States. Throughout this paper, I use a number of terms in a particular way. Specifically, I will make frequent use of the terms “liquidity,” “public,” and “bank.” I will take “liquidity” to mean the M2 money supply: the amount of cash, checkings and savings deposits, and time deposits available in the economy at a given time. “Public” will refer to ownership of an entity by the government, rather than an entity being publicly traded on the stock market. Finally, “bank” will refer to the commercial kind unless otherwise noted. This last distinction is important to draw, as many of the conclusions reached in this paper would not transfer to investment or merchant banks. 2. The Rationale Behind a Public Bank America has had a tumultuous relationship with private financial institutions, and a number of historical figures struggled with determining the role a finance sector should play. Andrew Jackson wrote that “if Congress has the right under the constitution to issue paper money, it was given them to be used by themselves, not to be delegated to individuals or corporations.” Jackson referred to what many contemporary economists consider to be a significant flaw of the private banking system: control over the money supply. Economists traditionally assume that the federal government regulates the money supply. The Federal Reserve (the Fed) can control the money supply by trading Treasury notes with commercial banks, or the Treasury itself can physically print more bills in order to increase the money supply. It is inherently desirable to have a government without a profit motive perform this function—unchecked increases in the money supply would lead to devastating inflation and a loss of faith in our currency. Furthermore, this also means that the government is able to control the amount of money in the economy during times of crisis, and to some extent prevent liquidity from drying up. Control over the money supply is a useful policy tool that is best wielded by the state, with the interest of its constituents in mind. The reality is that, by and large, the money supply is heavily influenced by the decisions of commercial banks. Economists have reached a consensus on what is known as the “fractional reserve theory of money creation.” This theory states that banks must lend out a percentage of each deposit they receive, equal to the total deposit minus the “reserve requirement”⁠—an amount set by the Federal Reserve that banks are required to retain of each deposit— as an insurance against bank runs. After the bank lends out this percentage of a deposit, the person who receives the loan theoretically deposits that money in another account, where a part of it is loaned out, and so on. Every person in this chain now has additional money in their account, and their spending decisions will be made accordingly. The original deposit was multiplied; thus, money was “created.” Conversely, banks may also decide to call back their loans or refuse to issue new ones. In effect, this results in a removal of money from the money supply. The diagram below illustrates how liquidity in the system increases through this process. Image 1: Illustration of the fractional reserve theory of money creation given a 10% reserve requirement The unfortunate truth is that this method of money creation works to exacerbate any swings in the wider economic environment. When the economy is heating up (and thus is experiencing inflationary pressures), banks will be more eager to lend money, which in turn will increase the money supply, thereby further increasing inflation. When the economy is in a rut, fewer loans will be extended, contracting the money supply and further pushing down spending and aggravating potential deflation. When banks follow “rational incentives,” meaning that they become less risk averse during periods of growth and more risk averse during economic slowdowns, the economy does not always benefit. One could argue that the Fed is tasked with preventing these swings. During economic booms they raise interest rates, which curbs lending, and during busts they lower them, which in turn boosts spending. The problem is that the government is now acting as a middleman, when this is a system they are supposed to have complete control over. Commercial banks’ role as distributor of liquidity has other downsides. Since these banks are asked to maximize shareholder value, they are incentivized to extend capital only to those who are likely to repay it. Individuals or businesses that are deemed high-risk are penalized with high interest rates and other unfavorable loan terms. This is not incompatible with prevalent economic theories. The bank is assuming the risk, and for taking on higher risk should be eligible to receive a larger reward. However, a closer examination reveals the perversity behind this idea. Access to capital is essential for a number of activities that can lead to prosperity. Home ownership, starting a business, or going to college all typically require some form of lending. Low-income individuals are thus required to pay a higher price, both in absolute and relative terms, for these opportunities. It is morally bankrupt, as well as socially undesirable, to make loans more expensive for those who already have very little, and there is substantial evidence that this system contributes to the “poverty trap.” Studies have shown that low-income individuals on average do pay more for any kind of loan. The Federal Reserve also found a positive correlation between income and credit score, and a number of other studies have further shown that minorities typically have lower credit scores, even when the data is controlled for disparities in income. There is a strong negative correlation between credit scores and interest rates payable on loans—the lower your score, the more you are asked to pay. It is understandable that banks employ this system, but that does not mean that it is beneficial to society as a whole. In essence, the credit score system is a regressive tax—the poorer you are, the more you pay. The graph below shows the average credit score of each income group on a bar chart and superimposes the median mortgage rate for each credit score. There is a clear positive correlation between credit score and income level, and a negative correlation between credit score and median mortgage rate. This data shows that income is in turn negatively correlated with mortgage rates; that is, the lower one’s income, the higher their mortgage rate is likely to be. Image 2: Median credit score and mortgage rate versus income. A public bank could step in and resolve this issue. It could extend loans not with the intent of making a profit, but rather with the intent of stimulating the economy. This might mean providing loans to low-income communities at break-even interest rates, as they are likely to spend that money in a way that benefits the wider economy. A public bank could further act as a tool for policymakers. If politicians want to stimulate homeownership and reduce emissions, mortgages could become cheaper and car financing more expensive. A public bank would provide a direct way of injecting money into desirable areas of the economy. Banks’ focus on generating returns for their shareholders costs the general public in a number of other ways as well. Most Americans have their checking and saving accounts with one of the major banks—37.6% of all deposits were placed with one of the five largest banks, and 30.82% were placed with one of the three largest. In fact, the five largest American banks control 56.9% of all assets held by U.S. banks. Today’s financial sector can be (and has been) accurately described as an oligopoly—a few key players control such a significant share of the market that they are able to work together and set rates in a way that is favorable to them. In this case, savings rates are artificially held down. As mentioned before, banks make money from each dollar they receive in deposits. Unfortunately, almost none of that money returns to their clients. Savings accounts at most commercial banks generate negligible interest, and checking accounts frequently cost money for those who deposit under a certain amount. Interest rates offered on savings accounts remain low, even as the Fed has increased its discount rate. The below graph shows the federal funds rate as compared to the average interest rate Americans received on savings below $100,000. Both were lowered after the 2008 financial crisis in an effort to discourage saving and encourage spending, but the federal funds rate has since increased significantly. In contrast, the interest rate on savings accounts has remained mostly stagnant. The profits banks make on deposits can be approximated by the difference between these two rates—the less they pay to depositors and the more they charge for loans, the more profitable lending becomes. Image 3: Average interest rate on savings accounts versus the federal funds rate A public bank would primarily aim to further public interest rather than make a profit, and is therefore more likely to offer a savings rate that closely mirrors the discount rate. Not only would this provide customers with a better alternative to the rates offered by commercial banks, it might also force banks to match that rate if they want to retain their clients. In effect, this would constitute a redistribution of wealth from the banks and their shareholders to the general public. Although online banks currently offer higher interest rates on savings accounts, they are rather niche and lack the visibility to threaten larger banks. An accessible, well-known public bank could succeed where these online banks have failed and significantly drive up the average interest rate on savings accounts. A lack of profit incentive would also reduce a public bank’s exposure to risk. In the years leading up to the Great Recession, nearly every bank filled their balance sheet with subprime mortgages and risky derivatives, even though they were aware of the risks associated with these products. Banks simply could not explain to their shareholders that they were going to hold off on products that were generating sizeable returns for their competitors. Commercial banks’ profit incentive has at times generated genuine financial innovation, but more often than not has caused them to cut corners and harm communities. Wells Fargo, for example, was convicted of engaging in predatory lending throughout the US in the years leading up to 2008. The bank knowingly extended credit to those who were unlikely to pay it back, charging high upfront fees and then passing the actual debt on to other firms. Wells Fargo knew the risks involved, but ultimately decided short-term profits were more important. Unlike traditional banks, a public bank would not answer to shareholders, but rather to elected officials who represent the public’s best interest. Research has already shown that banks who answer to a large number of shareholders are more risk-averse than those who answer only to a select group of the corporate elite. These findings could be extrapolated to infer that a bank that answers to the general population would be significantly more risk-averse than current financial institutions. Public banks clearly offer a solution to many of the issues our financial system struggles with today. A wholly different incentive structure would allow these banks to deploy capital where it would stimulate the economy, rather than where it would only generate profits for the bank. The absence of a responsibility to shareholders would lead to higher interest rates on savings accounts and the adoption of a more sustainable risk profile. As a competitor to commercial banks, a public bank would realign the industry to be more concerned with the needs of its customers. Regardless of a public bank’s merits, the US is currently home to just one public bank, whose assets total $7 billion–about 0.004% of total commercial bank assets. The next section will investigate the steps required to create a public bank and discuss potential pitfalls in the process. 3. Creating a Public Bank During the 2008 recession, the government could have created a national public bank simply by taking over an existing commercial bank. The value of most commercial banks’ balance sheets had dropped drastically following the collapse of mortgage-backed securities, making them an easy target for takeovers. Although this solution may have ultimately generated more returns for taxpayers and fewer for wealthy shareholders than bank bail-outs did, it would have created a set of unique and difficult-to-solve challenges. Balance sheets would have to be cleaned of toxic and risky assets, and the bank would have to gradually reduce its exposure to financial products that are not in line with the mission statement of a public bank. Entire divisions that handled these products would have had to be laid off, and many clients might find that services they used would no longer be on offer. Luckily, our current economic outlook is a lot rosier than it was a decade ago, and few banks (perhaps with the exception of the ever-troubled Wells Fargo) seem in danger of failing any time soon. A public bank would thus need to be created from scratch—something that would allow for greater control over the bank’s structure and design. A number of states and cities (Vermont, New Jersey, Massachusetts, Los Angeles, San Francisco, etc.) have conducted or are in the process of conducting feasibility studies for the creation of regional public banks, and as such, there is a substantial range of literature available with detailed descriptions of the steps required to start such a bank. Although many studies have focused on public banks as providers of capital for infrastructure investment and providers of solutions for state financing needs, the basic principle behind their construction remains the same. The technicalities behind a bank’s creation are simple. The bank needs to have sufficient assets to begin lending, a few employees, and physical branches. Typically, feasibility studies assume the city or state responsible for creating the bank would move its current cash reserves to the new bank, thereby providing capital without the need for loans or other costly financing techniques. The only existing American public bank—the Bank of North Dakota—was initially financed by a $2 million bond offering in 1919, which would amount to about $29 million today. Research suggests that, due to the increased complexity of the contemporary economy, the required capitalization would be closer to $325 million. Since most states hold a multiple of that amount in commercial banks currently, it is unlikely that a bond offering would be necessary today. California, for example, holds nearly $15 billion in its “rainy day” fund alone. A public bank would have the local government as its sole shareholder, and any returns it made would be returned to the state or city in which it is located. As such, public banks would prevent capital drain to out-of-state bondholders and keep profits within the local economy. The creation of a public bank would be relatively uncomplicated, and a variety of feasibility studies have cited high potential upsides. For example, a public bank in New Jersey would generate about $16-21 million in additional state output, and raise state income by about $3.8-5.2 million, for every $10 million lent out. Furthermore, for every $10 million lent out the bank would add roughly 60-93 new jobs. Yet, strong opposition to the idea exists. In Maine, a bill to commission a study on the effects of a public bank failed to pass the state legislature, even though 72% of small businesses and farmers in the state supported the creation of a state-owned bank. Opponents often cite currently adequate availability of credit through commercial channels and increased risk to state assets as arguments against a government-controlled bank. Internationally, the idea has also fallen out of favor with economists, who claim that public banks are often inefficient and influenced by political pressures. The next section of this paper will investigate a current example of a state-owned banking system to determine the merits of these arguments. 4. Public Banks Today a. The Bank of North Dakota The Bank of North Dakota (BND) is the United States’ only existing example of a government-owned bank, and it is often cited as an example of the potential benefits of such an institution. The bank certainly has reported impressive figures since its founding in 1919. As shown in the graph below, it has made a net profit every year since its founding, even during the Great Depression and the Great Recession. Image 4: Yearly profits of the Bank of North Dakota Additionally, the bank has managed to return much of that profit to the state government, keeping North Dakota from running a budget deficit when other revenue sources have fallen short. The historical context surrounding the bank’s founding is oddly reminiscent of our contemporary situation—around the start of the 20th century, a populist movement in North Dakota renounced the high fees farmers were being charged by out-of-state financiers and pushed for a local bank that would be tasked with “promoting agriculture, commerce and industry.” Local commercial banks were concerned that a public bank would drive them out of business and managed to convince the legislature to impose strict limits on what would become the BND. Initially, the bank was “prohibited from opening branches, engaging in retail banking, and providing commercial lending other than farm real estate loans.” A number of these restrictions were later loosened, but the bank still is not a real substitute for a commercial bank. The BND operates conservatively, shows itself to be risk averse, and sees “maintaining a strong and stable balance sheet” as a key priority. In this sense, it has been hard to use the success of the BND as an argument for public banks in the broader United States. The bank does provide affordable loans for small businesses (albeit not for individual consumers), but “roughly 50 percent of the bank’s loan portfolio consists of loan participations and loan purchases from community banks,” rather than regular loans. During financial crises, the bank helps to maintain liquidity in the markets, but it does so by purchasing loans from smaller banks rather than by actively extending loans. The BND is a successful experiment in state-ownership of banks, but the restrictions imposed on it by the legislature prevent it from being a truly transformative force. Its lack of access to consumers and emphasis on cooperation with commercial banks mean that most North Dakotans are still forced to obtain the majority of their financial services from for-profit companies. Furthermore, the legislature’s eagerness to use profits from the BND for state expenditures means that the bank is still required to make a profit—the only difference is that this money goes back into the local community, rather than towards mostly wealthy shareholders. The bank’s conservative approach to investments may also not produce socially optimal outcomes seeing as many investments with significant potential upsides, such as small business loans or mortgages for low-income families, have a fairly high risk profile. Instead of maintaining a low-risk balance sheet, the BND could focus on providing loans that “serve a social purpose but that the private sector would find too risky.” It is also important to note that the BND has operated independently of political forces. Rick Clayburgh, president of the North Dakota Bankers Association and former state tax commissioner and state legislator, has said: “Our legislature... has kept their politics out of the governance of the Bank of North Dakota”. The supposed interdependence between public banks and the legislature is an oft-cited criticism against public banks, and this paper will explore the veracity of this claim further in the following chapters. In the case of the BND, concerns of the legislature influencing the bank’s decisions appear to be unfounded. The Bank of North Dakota is a successful institution, but it has hardly lived up to the disruptive potential of a public bank. More than anything else, the BND shows that merely having a state-owned bank is not enough to achieve the goals set out at the start of this paper—a bank has to provide a viable alternative to the commercial banking sector, as well as have a set goal of promoting investments that serve a social purpose, if it is to meaningfully change the way the finance sector operates today. b. Germany’s Public Banks: The Sparkassen Germany’s commercial financial sector consists of three “pillars”: commercial banks, cooperative banks (owned by their customers), and public banks. Examples of the last include the aforementioned Sparkassen and Landesbanken, which engage in wholesale banking, as well as the LBS Bayerische Landesbausparkasse, a public sector loan and building association. Sparkassen are a unique example of state-owned, easily accessible banks that offer basic commercial banking services to consumers and small- to medium-sized enterprises (SMEs). The Sparkassen have been operating since 1778 and were originally founded by merchants hoping to support local communities. Today, the Sparkassen have over fifteen thousand branches and control over €2 trillion in assets. The banks operate in a decentralized manner with strong geographic boundaries, meaning that each city or region has its own Sparkasse that serves local clients and provides loans for local investments. The banks are owned by the cities or regions in which they operate but are also are backed by a national organization that maintains a “rainy day fund” which Sparkassen can tap into, so that a region of Germany experiencing financial distress can obtain support from Sparkassen in prospering regions. Image 5: Representative structure of the Sparkassen system Germany’s Sparkassen are mandated by law to serve the public interest and promote regional development. In fact, their success is measured not by returns generated for shareholders or profit, but by their impact on the communities they serve. Stakeholder value, rather than shareholder value, is the key metric by which these banks are judged. Instead of generating profits for those who invested in the bank, the Sparkassen are required to deliver returns for local stakeholders. Such stakeholders include local residents, small businesses, and municipal governments. The banks are highly popular with their audience, with about 70% of all SMEs obtaining their financing from a Sparkasse. About 60% of all Germans interact with these banks in some way, with low-income families specifically making up the largest part of the Sparkassen’s customers. This broad reach is partly because of their indiscriminate approach to banking—they are mandated to not deny anyone a savings account, and they must provide the same rate of return for each customer. Furthermore, the legislature explicitly states that Sparkassen are supposed to “satisfy the credit demands of local businesses.” Besides serving customers and enterprises, Sparkassen fund socially desirable projects with the express intent of promoting the public interest. The banks together provided €488 million (about $550 million) to social projects in 2018 alone, and a 2015 report estimated that the banks added about €20 billion in value to local communities that year, equal to about 0.66% of Germany’s 2015 GDP. They also provide significant funding for start-ups, infrastructure repairs, and other socially desirable activities. Notwithstanding the several benefits associated with the Sparkassen system, the banks have been regularly criticized by European and American economists alike. Many of these critics primarily take issue with the concept of a state-owned bank rather than with a specific issue present in the system, but others have identified some salient flaws in the way the Sparkassen are run. Political involvement in the day-to-day operations of the banks has been and remains an area of concern. A study by the Brussels-based think tank Bruegel notes that, in the eight states they surveyed, 83% of the Sparkassen’s board chairs were current county heads or municipality heads. In five out of eight states, every single board chair was a current politician. More broadly, 18% of board members were politicians. Moreover, in the only state where politicians publicly declare their income, board chair fees made up an average of 12% of a politician’s income. The mayor of Regensburg, the fourth-largest city of Bavaria, is currently standing trial for accepting significant campaign donations from a real estate developer, allegedly in exchange for a favorable loan from the Sparkasse where the mayor held a board seat. Such cases are rare, but the degree of entwinement between politicians and the public banks is certainly cause for concern. Little research has been done on inefficiencies in the Sparkassen system caused by political entanglement, so the severity of these findings remains unclear. An American public bank could certainly model itself after the Sparkassen, but it might benefit from an explicit separation between currently serving politicians and the bank itself, if only to maintain public trust in the system. 5. Looking Forward: Public Banking Initiatives in the United States The public banking movement has seen a resurgence of sorts in the last decade, and a number of states and cities have introduced legislation to either establish a public bank or to conduct feasibility studies. Most notably, current New Jersey governor Phil Murphy ran his campaign partly on the promise of establishing a public bank, and he sponsored a bill on his first day in office to achieve that goal. Maine, Vermont, and New York have also voted on bills to establish state banks. Image 6: Public banking efforts by state Feasibility studies have generally predicted positive results. For example, a 2011 feasibility study predicted that a public bank would generate 3,500 new jobs in Maine, a 2013 study found that a public bank would create about 2,500 new jobs and $200 million in value added to the economy in Vermont, and a study for the city of Santa Fe found that every $1 million in lending from a public bank would generate an additional ten jobs in the local economy. Exceptions are the feasibility studies for California and DC. Both studies found that establishing a public bank would be legally difficult and capital intensive. The DC study is interesting in that it heavily relied on advice from the Federal Reserve, which stated that the income a city or state can gain by having a public bank is "relatively minor" and that the risk of losses is "real.” It is important to note that the Federal Reserve might have an inherent aversion to public banks, as these are not placed under the Fed’s supervision. Aside from this criticism, the DC study also found that public banks would spur local economic development and infrastructure investment, as well as reduce risk exposure of the financial system. The final version of the DC report is still being edited and is due to be released sometime later this year. Feasibility studies may have produced mixed results, but there has been nothing mixed about the legislative response to the idea of public banks. Maine’s bill was sent back from committee with a majority saying it should not pass. Vermont’s bill to establish a public bank did not pass either (although the legislature did approve $350 million in local investment instead), and New Jersey seems to have put its plans for a public bank on hold. As of today, North Dakota remains the only state with a public bank. The idea is seen as overly socialist by many, and as overly complex and costly by others. The DC feasibility study claimed that direct government spending towards socially beneficial programs would be far less complex and costly than establishing a public bank, which seems to be an argument that many lawmakers have bought into. Legal challenges also cause many legislators to view public banks unfavorably. Specifically, many state constitutions have provisions against “lending the credit of the state.” However, the Supreme Court’s ruling in Craig v. Missouri holds that such provisions “[do] not interfere with the power of a state to authorize banks to issue bank notes in the form of due-bills or of similar character, intended to pass as currency on the faith and credit of the bank itself, and not of the state which authorizes their issuance.” As such, banks (public or commercial) are able to provide credit that passes as currency. In Briscoe v. Bank of Commonwealth of Kentucky (1837), the Court held that Kentucky’s state bank did not violate the Constitution, as its loans contained “no pledge of the faith of the state for the notes issued by the institution.” The issue at hand is whether activities that are at the core of the bank’s operations (lending, investing, etc.) are explicitly backed by a government guarantee. If so, public banks would have an unfair advantage over private banks. So far, no proposal for a state bank has indicated that the bank would rely on such a state-sanctioned “pledge of faith,” and as such, it is unlikely that the constitutionality of a public bank could be challenged on these grounds. Furthermore, the Bank of North Dakota is proof that it is constitutionally permissible to operate a public bank. 6. Conclusion: An Uncertain Future There is a strong case to be made for the establishment of regional public banks throughout the United States. Increased control over the money supply, greater access to affordable loans for low-income families and small businesses, higher returns on savings accounts, and a lower risk profile would all result from having a public bank in place. As it stands, commercial banks largely engage in rent-seeking behavior. Predatory lending practices, low interest on savings accounts, and high credit card rates serve to generate profits for large banks by taking money from the economically vulnerable. The IMF has found that, as the financial sector grows relative to the size of the economy, inequality increases. Recent research by economists at Columbia University confirms this rise in inequality, and further found that this effect is not significantly offset by the easier access to credit financial markets supposedly provide. As it stands, encouraging progress is being made in many places. Feasibility studies are an important first step in moving this idea into the mainstream, and we might soon see a bill to establish a state bank appear in New Jersey. However, the unfortunate truth remains that lawmakers view public banks unfavorably. Beyond the practical hurdles associated with establishing one, there seems to be a general sentiment that a public bank would not fit with the capitalist ideals of the United States. Lenin’s claim that “without [public] banks, socialism would be impossible. The big banks are the ‘state apparatus’ which we need to bring about socialism [...]” has fundamentally linked the idea of a state bank with an overly leftist vision for many. I would argue that a public bank is fundamentally American. It is a state apparatus that enables the government to more efficiently support entrepreneurship, local communities, and infrastructure. A public bank, if given proper direction, could facilitate the achievement of the elusive American Dream. The Founders vocally opposed monopolies, championed a stable currency, and believed all should be able to acquire property and benefit from public infrastructure. Stiglitz wrote that, Rather than justice for all, we are evolving into a system of justice for those who can afford it. We have banks that are not only too big to fail, but too big to be held accountable. [...] The only true and sustainable prosperity is shared prosperity. Commercial banks today are hurdles keeping us from innovation, wealth creation, and achieving equality. A bank should facilitate the dreams of entrepreneurs from all backgrounds, not just those from Silicon Valley. It should not charge the poor more than the rich. In many ways, commercial banks violate some of the core values on which this country was founded. In short, there is nothing un-American about a state bank. 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Energy Embracing Renewable Energy for Sustainable Job Growth in West Virginia Jingpeng Shao Brown University Author Anna Corradi Phillip Squires Elizabeth Yeh Editors Spring 2018 Examining the intersection of climate change and rise of populism in West Virginia, this essay evaluates policies and represents recommendations to address the demand for quality jobs and long-term transition towards sustainable energy. Introduction The dependency on coal for energy generation lies at the intersection of two crucial issues that have come to define international political economy in the 21st Century–climate change and the rise of populism–thus illustrating the deep dissatisfaction with economic liberalization and globalization. In the US, coal lost its position as the dominant source of electricity generation for the first time in 2016 (30.4%) when it was surpassed by natural gas (33.8%) (EIA, 2017). This has contributed to a long-term trend of decline in coal employment, which began after the end of the Second World War and created a substantial source of economic, social, and political woes for the mid-Appalachian region known as the ‘Coal Country’. While campaigning for the 2016 presidential election, Donald Trump proclaimed, “We’re going to put the miners back to work,” to a cheering crowd waving “Trump Digs Coal” signs in Charleston, West Virginia (C-Span - Trump, 2016). His landslide success in the state, beating Hillary Clinton’s 26.2% with 67.9% of the popular vote in November 2016, in part reflects the appeal of his vow to end the liberals’ “War on Coal,” which has allegedly destroyed jobs and with them the prosperity of the region. On the same day, West Virginians elected Democrat Jim Justice, who had promised to embrace coal and echoed Trump’s “jobs, jobs, jobs,” as governor. Such rhetoric has two main implications: that West Virginia’s fortunes are tied to coal, and that the decline of coal can be reversed. However, these are only myths and carry no fact-based weight. West Virginia’s economic woes are complex and must be addressed with a multitude of approaches. Instead of viewing renewable energy in a negative light and trying to dismiss it, the state should consider it as a viable source of job creation for the region. Dismantling the Environmental Protection Agency and related regulations such as the Clean Power Plan, all of which are meant to be combating climate change, is not the panacea when addressing the long-neglected demand for jobs in the region. In fact, it will lead to greater long-term woes with marginal short-term benefits. Instead, policymakers must embrace the shift in energy that is essential for climate change mitigation by transitioning to the sustainable energy sector and by investing in job creation to help people adapt to the movement towards a low-carbon economy. More specifically, instead of resuscitating coal mines and opening coal power plants, West Virginian legislators should first remove regulations that discourage renewable energy, then stimulate the demand for renewable energy and related jobs (such as energy efficiency) (GPO, 2011), and finally invest in (re)training programs to help unemployed (coal) workers. For any policy to be successfully executed, it must respect and understand the values and hardships of the region, as it confronts the two aforementioned myths. Therefore, this paper will begin by examining the two relevant problems in the international political economy: climate change and the rise of populism in the heart of the “Coal Country,” namely West Virginia. Such contextualization will provide the objectives and the evaluation criteria for the policies that will be compared. From those assessments, a set of policies recommendation will be constructed for legislators, with the goal of simultaneously addressing the demand for quality jobs and the long-term need to transition towards sustainable energy. Climate Change and the Clean Power Plan Climate change is an inherently global problem, one caused by greenhouse gas emissions (carbon dioxide, methane, nitrous oxide, perfluorocarbons, sulfur hexafluoride, and nitrogen trifluoride etc.) emitted across the world. Thus, this phenomenon has global repercussions, such as rising sea levels and more frequent extreme weather events (Tanner and Allouche, 2011). The transition to low-carbon energy, which focuses on limiting greenhouse gas concentrations in the atmosphere (Frankfurt, 2017), is crucial to climate change mitigation. The 2015 Paris Agreement, with the overall objective of restricting the global temperature rise to below 2 degrees Celsius compared to pre-industrial levels, is an important milestone in the international cooperation that is crucial in combating climate change. A successful execution, however, depends entirely on the ability of member nations to stay committed to their reduction promises. Under President Obama, the US committed to reducing its greenhouse gas emissions by 26-28% below 2005 levels by 2025. The energy sector, accounting for 31% of emissions, is the most influential sector in terms of US greenhouse gas emissions. The Clean Power Plan (CPP) of the Environmental Protection Agency (under section 111(b) of the Clean Air Act) is a key component of this effort, one that encourages the shift towards less polluting sources of energy. However, it is also portrayed as driving the “War on Coal.” To reach the overall goal of 32% reduction (compared to 2005 levels) in carbon dioxide pollution from American power plants, the act stipulates state-specific targets for carbon emission reduction. West Virginia’s target is to reduce carbon dioxide emissions from 72,319 thousand short tons in 2012 to 51,325 thousand short tons (only considering existing sources) or to 51,857 thousand short tons (considering both existing and new sources). That translates into a significant challenge: either a 37% reduction in carbon dioxide emissions per megawatt-hour (“rate-based” target), or a 29% reduction in total emissions from existing sources (a “mass-based” target, which is recommended by the West Virginia Department of Environmental Protection’s Feasibility Report) (Van Nostrand, Hansen, and James, 2016). Under the CPP, each state chooses the combination of compliance measures necessary to achieve the goal, such as improving efficiency of existing power plants (“heat rate improvements” in the case of coal power plants), increasing the use of natural gas, increasing the use of renewable sources (hydropower, wind, solar), and reducing the demand for electricity. Thus, it is essential to focus on how increasing renewable sources of energy can be a possible source of sustainable job creation in West Virginia. In addition to legal challenges that immediately attempted to halt the enforcement of the Clean Power Plan, the executive order issued by President Trump on March 28, 2017 rolled back on the Obama-era climate change policies, including the CPP. The country was told such action was being taken in the name of energy independence, and the miners were told: “You’re going back to work.”(Davenport and Rubin, 2017) Absolving the US, the second largest carbon dioxide polluter in the world, from their commitment to climate change mitigation threatens to unravel the multilateral agreements in the global fight against climate change. Other countries also had to face a tradeoff between short-term economic development, and finding sustainable climate change solutions. This is particularly true for China and India (the first and third largest polluters), which have been dependent on coal as an inexpensive source of energy for moving their massive populations out of poverty. West Virginia is an example of the challenges faced in transitioning away from coal as a source of energy once the industry and infrastructures are established. Coal Country and Populism West Virginia’s coal has helped power the country since the Industrial Revolution, and the resulting period of prosperity bound coal to the regional identity. The dual myth – that the decline of coal is reversible and that coal still determines the prospects of West Virginia – continues to prevail at the heart of the Coal Country. These pervasive notions must be considered when designing and implementing policy that emphasizes a shift away from coal. Patrick Hickey, a political science professor at West Virginia University, reflects on the appealing rhetoric of the War on Coal: “It is political suicide to tell citizens the truth about coal.” (Dlouhy and Natter, 2017) Since World War II, the coal industry has experienced dramatic transformations that have led to a decreasing demand for labor. For instance, modern extraction techniques, such as “mountaintop-removal mining” and new machinery, have replaced the traditional pickaxes and shovels. Furthermore, coal operators and contractors have decreased from 250,266 in 1979 to 98,505 in 2015 despite steady output of coal (MSHA, 2015). In the past decade, the rise of cheap natural gas due to hydraulic fracturing (commonly known as “fracking”) has further decreased demand for coal miners. The changing relative prices of coal and natural gas have contributed to this market-driven shift from coal to natural gas. Between 2000 and 2008, natural gas was significantly more expensive than coal. However, with the onslaught of natural gas extracted from shale formations, the gap in prices has narrowed significantly since 2009 (EIA, 2016). Coal was the largest source for electricity generation until 2016, when natural gas (33.8% of US generation share or 1,380,295 gigawatt hours) surpassed coal (30.4% or 1,240,108 gigawatt hours) (EIA, 2017). By contrast, in 2011 natural gas accounted for 24.7% (or 1,013,689 gigawatt hours) and coal accounted for 42.3% (or 1,733,430 gigawatt hours). Because of the long time horizons of power plant construction and retirement (beyond the four year term of one president), these results illustrate the long-term trends in the energy generation industry. The US Energy Information Administration reported that American power companies have retired and converted 13,000 megawatts of coal-power plants, and plan to retire or convert 8,000 megawatts of coal-fired power plants by the end of 2017 (many without regards for recent changes in regulation) (EIA, 2017). This demonstrates how the Clean Power Plan is not, as Trump has argued, the sole or even the biggest culprit for the decline of coal. In fact, the CPP was never meaningfully enacted due to the Supreme Court’s decision to block implementation during the litigation of West Virginia v. EPA (Tsand and Wyatt, 2017). In the absence of real implementation, there is little basis for the argument that CPP has had any direct impact on the decline of coal. In other words, the CPP has been wrongly framed as the culprit of the socioeconomic problems associated with the decline of coal by certain politicians resorting to demagogic rhetoric. The realities of cheap natural gas with decreasing market demand for coal and increasing international support for clean energy cannot be easily reversed. Furthermore, the demand for coal outside of West Virginia also influences the West Virginian coal industry because it exports a significant amount of the coal it produces; in 2014, around half (50 million short tons) were shipped to other states and around one-third (34 million short tons) were exported internationally (EIA, 2017). Coal has long been the largest commodity the state exports by value: 25.3% (or $1.278 billion) in 2016, despite a 25.8% decrease since 2015 (which is consistent with past years) (US Census, 2017). The decrease can be partially attributed to the weaker international demand, especially from China, where the government is prioritizing and heavily investing in sustainable energy development in addition to cutting back on coal (Frankfurt, 2017). These industry-wide trends contradict the narrative of some politicians blaming job loss primarily on environmental regulations such as the Clean Power Plan. The second persisting myth is how West Virginia is tied to coal. For the last 25 years, coal has accounted for less than 5% of the state’s workforce (Cohen, 2016). Nevertheless, the cultural symbolism of coal remains incredibly influential and poignant for the community where, “even if you’re not directly connected to the industry, you may know family members or relatives or ancestors who were.” (Dlouhy and Natter, 2017) To West Virginians, the job of a coal miner once signified, and continues to evoke, a stable middle-class yearly income of $85,000 with many benefits. Being a unionized salary, this was the norm for the coal miners of previous generations, under the United Mine Workers of America (Tabuchi, 2017). The widening income inequality within the industry between the executives and the coal workers has also contributed to the sense of loss and nostalgia for the blue-collar workers of ‘Coal Country,’ which is exacerbated by the replacement of unionized long-term contracts with low pay short-term contracts (Tabuchi, 2017). When the middle-class loses the hope and security that accompanies a well-paying long-term job, populism branded with “jobs” swells quickly. Coal miners and their communities are proud of their heritage and identity, embracing their status as the soldiers powering America. Even an infamous Hillary Clinton quote promoting her $30 billion program for coal workers incorporated praise for coal miners: “Because we're going to put a lot of coal miners and coal companies out of business, right? And we're going to make it clear that we don't want to forget those people. Those people labored in those mines for generations, losing their health, often losing their lives to turn on our lights and power our factories.” (C-Span – Clinton, 2016) Her failed effort to reconcile the declining coal industry with opportunities in the renewable energy sector shows the importance of effectively communicating and convincing not only the coal community, but also blue-collar America, that the coal industry will be supported. Policy Objectives and Criteria For long-term prosperity in West Virginia, policymakers should consider renewable energy as a possible solution in order to simultaneously address the need for climate change mitigation and the demand for sustainable jobs as highlighted by the rise of populism. Without sufficient job creation, climate change efforts could fail to address the (potentially negative) impact on the greater economy, as pointed out by Dr. David Montgomery’s critique of a PERI study on EPA regulations, during the Senate Committee Hearing on Green Jobs and Trade: “the critical error, epitomized by PERI, and common to all the studies in the genre, is their failure to balance the jobs lost in the rest of the economy against those that may be gained as a result of the specific mandated investments… It ignores the increase in the cost of electricity caused by this policy and the effect of that higher cost on household real incomes, wages, productivity, investment in other sectors and economic growth.” (GPO, 2011) Environmental regulations could force policymakers to choose climate change mitigation over economic needs, which would put additional stress on an already sensitive economic situation. West Virginia will likely face the same challenge of dependency on a declining fossil-fuel industry (coal today) again in the future if steps towards renewable energy are not taken. Complying with environmental regulations such as the CPP is only the first step towards long term sustainability, as these policies may continue to perpetuate the dependence on relatively cleaner but non-renewable energy sources such as natural gas or “clean coal.” (Van Nostrand, Hansen, and James, 2016) Natural gas has already begun replacing coal across the nation and within West Virginia, as the state’s existing energy infrastructure and geographic location help make natural gas development significantly cheaper than renewable energy development. Still, the fundamental issue of long-term sustainability in energy generation can only be resolved by a shift (however gradual) towards renewable energy by shifting both market dynamics and state policy. Kate Gordon, the Vice President for Energy Policy at The Center for American Progress Action Fund, presents a strong long-term view: “‘green jobs’ stands for much more than just the jobs themselves. It stands for a whole new set of industries and investments that will make us as a country more competitive and our economy more sustainable in the long term.” (GPO, 2011) Without addressing the constituents’ economic and job demands in West Virginia, which have already contributed to the hopelessness and frustration of the community, populism will continue to rise and undermine the political will to participate in international cooperation for climate change mitigation. Success in creating desirable and sustainable jobs for the disenfranchised blue-collar workers can demonstrate the viability of a low-carbon economy and increase the appeal of combating climate change mitigation. Policy Evaluation and Recommendation Given West Virginia’s status as the fourth largest energy producing state (producing 4.6% of US electricity in 2013), its dependency on coal for generating 94% of that power in 2015, and the greater shift away from coal, there is significant space and potential for sustainable job creation in the renewable energy industry. In neighboring Ohio, which also has a history rooted in coal, there has already been significant progress made in the energy transition. The city of Toledo transformed itself into a center for solar innovation and production, thereby creating over 6,000 jobs (GPO, 2011). In order for there to be an increase in renewable energy investment, the demand for clean energy must be stimulated. The initial steps can be taken by removing the limits placed on net metering, and by allowing more distributed generation that would incentivize installations for renewable energy generation by individuals. The net metering system for solar energy systems’ owners calculates and charges their net usage of electricity, allowing for the excess electricity that these owners contribute to the grid to partially cancel out the electricity that they consume from the grid in the form of issued credits. Policymakers can work towards re-instituting its renewable portfolio standards by requiring investor-owned electric utilities and large retail suppliers to acquire 25% of electricity from alternative and renewable sources by 2025 (for which it became the first state to repeal in 2015) (EIA, 2017). Tax cuts, subsidies, and even loans and investment (perhaps with a combination of private and public funds) for larger utility-scale renewable energy projects can also be considered. However, measures must be taken to ensure long-term viability and responsible use of taxpayer money, and to confirm that incentives are not distorted. This first component of directly stimulating development in the renewable energy sector was missing in Hillary Clinton’s $30 billion “Plan for Revitalizing Coal Communities,” though it does share a similar recommendation for the following retraining program (Clinton, 2015). Secondly, West Virginian workers must be empowered to capitalize on job opportunities in growing renewable energy industries. Investing in retraining initiatives will bridge the gap between employers and employees by improving the skills of the overall labor pool. The success of such action is hopeful: on a smaller scale, the Coalfield Development Corporation’s programs have already demonstrated measurable success. They provide retraining to unemployed coal miners in different sectors: for instance, its “ReWire Appalachia” program uses the 33-6-3 model (33 hours of paid labor, 6 hours of higher education class time, and 3 hours of life-skills mentorship), and focuses on community-based solar projects, and could triple the amount of solar power in West Virginia (Coalfield, 2017). The impact of such program on boosting the solar industry and on empowering unemployed coal miners is indicative of a great initiative that should be scaled up with the support of West Virginia legislators. Regarding the criticism of the costliness of job training programs, cost projections can significantly differ depending on implementation (Louie and Pearce, 2016). Collaboration with potential employers in developing training programs with in-demand skills would also boost the effectiveness of the retraining program. This would not necessarily mean that taxpayers are funding training for certain companies, as long as there is a sufficiently large and diverse number of employers. As West Virginia faces economic challenges and transitional pressures, legislators should consider renewable energy as a potential source of job creation and economic growth. West Virginia has historically been one of the nation’s leaders in energy production. Therefore, rather than relinquish this position as a result of the decline in the coal industry, state officials should understand that fossil fuel sources, such as coal and natural gas, despite their low cost, do not represent the future of energy production and will likely be displaced by renewable energy sources. Thus, investing in clean energy development and retraining programs for present and future unemployed coal workers will allow West Virginia to maintain its status as a key energy producer for the US. However, state leaders must first push back against the dual myths, i.e. that West Virginia’s fortunes are tied to coal and the decline of coal can be reversed, which continually create resistance against alternative sources of energy. Once the myths are properly understood as such, climate change mitigation and the need for sustainable jobs can be transformed into two complementary pieces working together for West Virginia’s benefit. Together, they can create both long-term prosperity and a positive impact on climate change mitigation. Endnotes 3 The other important is adaptation, which focuses on adjusting to the adverse effects of climate change – especially important given how climate change impacts different regions unequally, often exacerbating preexisting poverty. 4 Granted, the poverty and need for electricity cannot be overlooked. 5 This uses controlled explosions on mountains to expose coal seams. 6 I do not agree with the entirety of his statement and was not able to evaluate the economic models. 7 Multiple variations of “Clean Coal” exist, including the aforementioned “heat rate improvements,” the more recent carbon capture and storage technologies that have pushed some coal companies to support the Paris Agreement. 8 The only source of industry investment funding is private, which could limit the scale at which demand for renewable energy can be stimulated. References United States Energy Information Administration. "Electricity Monthly Update", 2017. Presidential Candidate Donald Trump Rally In Charleston, West Virginia. Video. Reprint, Charleston, West Virginia: C-Span, 2016. Subcommittee on Green Jobs and the New Economy, of the Committee on Environment and Public Works. "Green Jobs And Trade: Hearings Before The Subcommittee On Green Jobs And The New Economy, Of The Committee On Environment And Public Works, 112Th Cong., 1St Sess. (2011)". Reprint, GPO, 2011. Tanner, Thomas, and Jeremy Allouche. "Towards A New Political Economy Of Climate Change And Development". IDS Bulletin 42, no. 3 (2011): 1-14. doi:10.1111/j.1759-5436.2011.00217.x. UNEP Centre, Frankfurt School. Global Trends In Renewable Energy Investment 2017. Ebook, 2017. http://fs-unep-centre.org/sites/default/files/publications/ globaltrendsinrenewableenergyinvestment2017.pdf. Van Nostrand, James M., Evan Hansen, and Joseph James. Expanding Economic Opportunity For West Virginia Under The Clean Power Plan. Ebook, 2016. http://energy.law.wvu.edu/files/d/585cffce-0aea-4535-84d0- 344591cfbb8/cpp-phase-ii-final.pdf. Davenport, Coral, and Alissa J. Rubin. "Trump Signs Executive Order Unwinding Obama Climate Policies". Nytimes.Com, 2017. https://www.nytimes.com/2017/03/28/climate/trump-executive-order-climate-change.html _r=0. Dlouhy, Jennifer A., and Ari Natter. "Trump’S Executive Order Won’T Save Coal Mining Jobs". Bloomberg.Com, 2017. https://www.bloomberg.com/politics/articles/2017-03-27/trump-s-order-won-t-resurrect-jobs-of-miners-key to-his-campaign. Mine Safety and Health Administration. "Average Number Of Employees", 2015. United States Energy Information Administration. "Natural Gas Expected To Surpass Coal In Mix Of Fuel For U.S. Power Generation In 2016", 2016. Tsang, Linda, and Alexandra M. Wyatt. Clean Power Plan: Legal Background And Pending Litigation In West Virginia V. EPA. Ebook. Reprint, Congressional Research Service, 2017. https://fas.org/sgp/crs/misc/R44480.pdf. United States Energy Information Administration. "West Virginia State Energy Profile", 2017. United States Census Bureau. "State Exports From West Virginia", 2017. Cohen, Roger. "We Need ‘Somebody Spectacular’: Views From Trump Country". Nytimes.Com, 2016. https://www.nytimes.com/2016/09/11/opinion/sunday/we-need-somebody-spectacular-views-from-trump country.html?_r=0. Tabuchi, Hiroko. "Coal Jobs Prove Lucrative, But Not For Those In The Mines". nytimes.Com, 2017. https://www.nytimes.com/2017/05/02/climate/coal-jobs-prove-lucrative-but-not-for-those-in-the-mines.html em_pos=large&emc =edit_dk_20170502&nl=dealbook&nlid=76920780&ref=headline&te=1&_r=1. Hillary Clinton CNN Democratic Presidential Town Hall. Video. Reprint, CNN, 2016. Clinton, Hillary. "Hillary Clinton’S Plan For Revitalizing Coal Communities". Hillaryclinton.Com, 2015. https://www.hillaryclinton.com/briefing/factsheets/2015/11/12/clinton-plan-to-revitalize-coal-communities Harold, Zack. "Revisioning Appalachia | Coalfield Development". Coalfield Development, 2017. http://coalfield-development.org/revisioning-appalachia/ . Louie, Edward P., and Joshua M. Pearce. "Retraining Investment For U.S. Transition From Coal To Solar Photovoltaic Employment". Energy Economics 57 (2016): 295-302. doi:10.1016/j.eneco.2016.05.016. Di Muzio, Tim, and Jesse Salah Ovadia. Energy, Capitalism And World Order: Towards A New Agenda In International Political Economy. Reprint, Palgrave Macmillan, 2016. Newell, Peter. Globalization And The Environment. Reprint, Cambridge: Polity Press, 2012.

Partisan Gerrymandering: Re-Establishing the Political Question Doctrine in Gill v. Whitford Partisan Gerrymandering Re-Establishing the Political Question Doctrine in Gill v. Whitford Connor Maag UCLA School of Law Author Filippo Zinni William Gomberg Harry Xie Editors Spring 2019 Download full text PDF (24 pages) Abstract American politics is more divided and more contentious than ever, and the Supreme Court recently published a decision that will define the nation’s political landscape. In Gill v. Whitford , the Wisconsin Elections Commission asked the Supreme Court to overturn a divided three-judge district court decision striking down a Wisconsin voter redistricting plan as an unconstitutional partisan gerrymander. But the court has yet to clearly define the constitutional boundaries of partisan gerrymandering, having provided contradictory holdings and reasoning for decades. In its June 2018 decision, the court held that the plaintiffs lacked standing to sue, but never reached the merits of partisan gerrymandering, leaving the justiciability of that issue unresolved. This paper finds that partisan gerrymandering is correctly viewed as a non-justiciable political question, due to a lack of judicially-manageable standards, the proper role of the judiciary, and judicial hyperpartisanship. Furthermore, alternatives under the First and Fourteenth Amendments carry implications that inevitably circle back to the rationale for invoking the political question doctrine in the first place. While the court is not bound by ethical rules, general ethical principles should guide the Justices’ own moral compass towards the political question doctrine. American politics is more divided and more contentious than ever, and the Supreme Court recently published a decision that will define the nation’s political landscape.[1] The Wisconsin Elections Commission petitioned the Supreme Court to overturn a divided three-judge district court decision striking down a voter redistricting plan for the Wisconsin state assembly as an unconstitutional partisan gerrymander.[2] However, the Supreme Court has not clearly defined the constitutional boundaries of partisan gerrymandering. In Gill v. Whitford in 2018, the Supreme Court held that the plaintiffs lacked standing—that is, the ability to even bring the lawsuit in court.[3] The court did not decide the merits of the case, and the court made the unusual decision to remand the case back to the district court to afford the plaintiffs an opportunity to properly bring their claim and litigate its merits in the future.[4] Notably, the court did not decide whether partisan gerrymandering is justiciable, leaving the issue unresolved.[5] This piece analyzes the judicial process of deciding the politically-charged Gill v. Whitford case, a decision which will inevitably shift the balance of the nation’s political power towards either the Republican or Democratic party. “Gerrymandering” is a pejorative term, referring to “the dividing of a state, county, etc., into election districts so as to give one political party a majority in many districts while concentrating the voting strength of the other party into as few districts as possible.”[6] It comes from former Massachusetts Governor Elbridge Gerry, who, in 1812, designed convoluted voting districts resembling the shape of a salamander.[7] More than two hundred years later, gerrymandering continues in Wisconsin and throughout the nation.[8] However, the judiciary is not the appropriate forum to address partisan gerrymandering grievances. This piece argues that the plaintiff’s partisan gerrymandering claims in Gill v. Whitford presents a non-justiciable political question, due to a lack of judicially-manageable standards for resolving the claim, the proper role of the judiciary within the government, and judicial hyper-partisanship that renders adjudication on the merits inappropriate. Part I of this piece provides background on the Gill v. Whitford case. Part II outlines the law of partisan gerrymandering leading up to Gill, demonstrating that the time was ripe for clarification from the court. Part III explains why the partisan gerrymandering claim in Gill presents a non-justiciable political question. Part IV considers alternative resolutions on the merits of First and Fourteenth Amendment claims, but finds that they inevitably circle back to the rationale for invoking the political question doctrine in the first place. Finally, Part V explores whether judicial ethics provide any useful guidance for the court, finding persuasive support for invoking the political question doctrine. I. Gill v. Whitford In Gill v. Whitford , a group of Democratic voters sued members of the Wisconsin Elections Commission, claiming that invidious and “aggressive partisan gerrymandering” violates their Fourteenth and First Amendment rights.[9] The Fourteenth Amendment claim alleges that Wisconsin’s redistricting “purposely distributed the predicted Republican vote share with greater efficiency so that it translated into a greater number of seats, while purposely distributing the Democratic vote share with less efficiency so that it would translate into fewer seats.”[10] The argument is supported by seemingly irreconcilable statistics of voters’ current partisan allegiances and the corresponding election results. Specifically, Republicans received 48.6 percent of the two-party statewide vote in 2012 but won 61 percent of the assembly seats; they also received 53 percent of the statewide vote in 2014 but won 64 percent of the assembly seats.[11] Plaintiffs believe a new mathematical test called the “efficiency gap” provides a judicially-manageable standard for the court to determine unconstitutional partisan gerrymandering by measuring the proportion of votes “wasted” by gerrymandering.[12] The First Amendment claim further alleges these wasted votes suffocate voters’ freedom of association with the political party of their choosing, as well as the freedom of expression for their political views.[13] The Western District of Wisconsin agreed with the plaintiffs, holding that partisan gerrymandering was unconstitutional.[14] The Wisconsin Elections Commission then appealed, but the Supreme Court vacated the district court’s decision and remanded it, “so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence...that would tend to demonstrate a burden on their individual votes.” The court’s determination and adjudication of partisan gerrymandering claims significantly impacts the American political landscape.[15] Partisan gerrymandering is a widespread issue not limited to Wisconsin,[16] and a Supreme Court decision striking down electoral maps for partisan gerrymandering can open the floodgates for challenges to district maps across the country.[17] Make no mistake, “Gill isn’t being overhyped: a ruling against extreme gerrymanders could re-jig American politics at the state and national levels for the coming decade and beyond.”[18] II. The Time Remains Ripe for the Supreme Court to Clarify Whether Partisan Gerrymandering is Justiciable For decades, American jurisprudence has debated whether gerrymandering involves a “non-justiciable political question”––which is, broadly, an issue inappropriate for resolution in the judiciary.[19] Currently there is no clear answer, even after the Supreme Court’s 2018 decision in Gill. The political question doctrine can be traced as far back as 1803 in Marbury v. Madison ,[20] but the modern doctrine has its roots in the 1960s, when gerrymandering claims fought against discrimination and racial redistricting. In 1962, Baker v. Carr held that racial gerrymandering claims are justiciable, reasoning that “if ‘discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights.’”[21] However, Gill v. Whitford is about partisan gerrymandering rather than racial gerrymandering, a concept first alluded to in Gaffney v. Cummings (1973). Gaffney suggested that political gerrymandering might be unconstitutional if it correlates strongly enough to racial demographics as to constitute racial discrimination.[22] The court reasoned that: What is done in so arranging for elections, or to achieve political ends or allocate political power, is not wholly exempt from judicial scrutiny under the Fourteenth Amendment...For example, multimember districts may be vulnerable, if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized.[23] The court still limited its reasoning to racial discrimination though, noting the “impossible task of extirpating politics from what are the essentially political processes of the sovereign States.”[24] In 1986, the court directly addressed partisan gerrymandering for the first time in Davis v. Bandemer. A plurality held that “political gerrymandering cases are properly justiciable under the Equal Protection Clause.”[25] The court generally analogized the rationale prohibiting racial gerrymandering to political gerrymandering, explaining “that the claim is submitted by a political group, rather than a racial group, does not distinguish it in terms of justiciability. That the characteristics of the complaining group are not immutable or that the group has not been subject to the same historical stigma…[does] not justify a refusal to entertain such a case.”[26] Dissenting, Justice O’Connor instead felt that “members of the Democratic and Republican Parties cannot claim that they are a discrete and insular group vulnerable to exclusion from the political process by some dominant group: these political parties are the dominant groups, and the court has offered no reason to believe that they are incapable of fending for themselves through the political process.”[27] In 2004, the court changed course when a plurality held political gerrymandering is a non-justiciable political question in Vieth v. Jubelirer . The court reasoned that “no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged (since Davis). Lacking them, we must conclude that political gerrymandering claims are non-justiciable and that Davis was wrongly decided.”[28] But this justiciability holding failed to achieve majority agreement.[29] In 2006, the court failed to clarify the conflicting Davis and Vieth pluralities. Then, in League of United Latin Am. Citizens v. Perry (2006), the court merely noted that “disagreement persists” as to whether political gerrymandering is justiciable and analyzed the merits because justiciability was not disputed by the parties.[30] The court held that “[they] do not revisit the justiciability holding but do proceed to examine whether appellants’ claims offer the court a manageable, reliable measure of fairness for determining whether a partisan gerrymander violates the Constitution.”[31] The court reasoned that partisan gerrymandering was inconsistent with both the Fourteenth Amendment’s prohibition against invidious discrimination and the First Amendment’s protection from retaliation based on political affiliation.[32] Ostensibly, League of United Latin Am. Citizens (LULAC) left Davis intact, but only because the parties did not dispute justiciability. The Davis and Vieth pluralities provide conflicting answers for whether partisan gerrymandering is justiciable. The Supreme Court’s considerable efforts in Gaffney, Bandemer, Vieth, and LULAC do not resolve whether such claims may be brought in cases involving allegations of partisan gerrymandering.[33] Gill thus presented the court with an opportunity to finally clarify the irreconcilable case law, but it remanded the case back to the district court on standing grounds before it could reach the merits.[34] Currently, the justiciability of partisan gerrymandering claims remains unclear. III. The Political Question Doctrine Must Apply to Partisan Gerrymandering Claims As a threshold issue in any partisan gerrymandering claim, the court must decide whether partisan gerrymandering is a non-justiciable political question before it proceeds with the rest of the case. The contours of the political question doctrine are poorly defined,[35] but the Supreme Court has explained that “sometimes...the law is that the judicial department has no business entertaining [a] claim...[where] the question is entrusted to one of the political branches or involves no judicially enforceable rights...Such questions are said to be ‘nonjusticiable,’ or ‘political questions.’”[36] The court has outlined six non-exhaustive, independent factors to identify such non-justiciable political questions: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] a lack of judicially discoverable and manageable standards for resolving it; [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. The doctrine is rooted in both “constitutional and prudential considerations,”[37] as well as “respect for the separation of powers, including the ‘proper—and properly limited—role of the courts in a democratic society.’”[38] Case law has also proscribed a nuanced distinction between non-justiciable political questions and cases with political ramifications, the latter of which remains justiciable.[39] As an initial matter, most cases are not decided by political ideology, but as a matter of law. Justices of different ideologies routinely agree with each other irrespective of political agenda. But this paper explores the “5 percent of cases that are truly difficult,”[40] rather than the 95 percent of run-of-the-mill decisions. Gerrymandering claims are often among those difficult cases because they necessarily involve issues that impact the balance of partisan power in the legislature. It has been said that for federal judges, “political elections are the devil’s domain,” and the court should remain cautious when deciding partisan gerrymandering claims.[41] The court should have held in Gill—or should hold in the future—that partisan gerrymandering is a non-justiciable political question due to (1) a lack of judicially-manageable standards for resolving the claim, (2) the proper role of the judiciary within the government, and (3) judicial hyperpartisanship that renders adjudication on the merits inappropriate. A. Partisan Gerrymandering Claims Lack Judicially-Manageable Standards The partisan gerrymandering claim in Gill presents a non-justiciable political question because the claim satisfies Baker’s second factor of “a lack of judicially discoverable and manageable standards for resolving it,”[42] and because there are “no judicially enforceable rights.”[43] First, the proposed “efficiency gap” solution is not a judicially-manageable standard. It fails to clearly identify the impact of partisan gerrymandering and is a rough approximation at best—Chief Justice Roberts calls it “sociological gobbledygook.”[44] Most notably, it fails to distinguish between so-called wasted votes caused by gerrymandering and natural causes.[45] For example, geography is a major cause of wasted votes.[46] Many urban districts overwhelmingly vote Democrat, causing wasted votes that are not the result of partisan gerrymandering.[47] Another problem is that “the efficiency gap is very noisy. It can shift back and forth from cycle to cycle” because voters can simply change their minds and side with a different political party.[48] In Gill, Judge Greisbach’s district court dissent pointed out that efficiency gaps measure “change every election based on a number of factors, including the issues raised, quality of local candidates, [waves], turnout, and other natural phenomena such as shifts in demographics.”[49] It is not hard to imagine a scenario in which voters’ partisan preferences change day-to-day if, say, a candidate receives negative publicity. Such a district might then fail the efficiency gap test because of that publicity, not the map. Second, the claim in Gill does not involve judicially-enforceable rights. Plaintiff-Appellees claim violations of the First and Fourteenth Amendments, which guarantee the rights of an individual, but the district court incorrectly focused on injuries to the Democratic Party as a group.[50] The Supreme Court correctly explained that “the associational harm of a partisan gerrymander is distinct from vote dilution.”[51] In one amicus brief, several states[52] pointed out that “the district court’s reliance on vote-dilution cases fundamentally misunderstands the difference between those claims regarding individual rights versus the novel group-based right recognized here.”[53] Justice Burger also pointed out in Davis that those who believe partisan gerrymandering is justiciable improperly “focus...not on access to the political process as a whole, but entirely on statewide electoral success...[and] whether the complaining political party could be expected to regain control of the state legislature.”[54] Many commentators and amici seem to transparently view Gill as a tool for political ends, even advocating to erode Republican power and “regain” Democratic control.[55] The logic has drifted quite far from claims about individual rights. The district court committed a logical leap from protecting individual rights to granting the Democratic party rights as a group and as a result, allowed for judicial manipulation of the balance of political power in the Wisconsin state legislature. On the other hand, the district court, Plaintiff-Appellees, and some commentators agree that judicially-manageable standards exist. The “efficiency gap” at least provides some sort of metric for courts to apply,[56] unlike previous partisan gerrymandering cases. This test also reduces the analysis to a narrow set of analytical factors, which courts should be able to handle.[57]And big-data computing can provide cutting-edge measurements that did not exist when Vieth suggested that partisan gerrymandering claims lack judicially-manageable standards.[58] Other commentators believe there are numerous alternatives that are also judicially-manageable.[59] Although the “efficiency gap” is better than any other test to date, its flaws still render it insufficient. Even if the measurement is considered reliable, the logical solution to eliminate “wasted votes” is a political system of proportional representation.[60] But the court held there is no constitutional requirement for proportional representation, and “equating a party’s statewide share of the vote with its portion of the congressional delegation is a rough measure at best.”[61] In Davis, the court held that a lack of proportional representation is not enough to prove unconstitutional discrimination.[62] Moreover, hyperefficient “partisan symmetry” erodes the concept of voting districts altogether. The district court in Gill keenly foresaw this criticism by acknowledging the potential extremes of partisan gerrymandering, explaining that “to say that the Constitution does not require proportional representation is not to say that highly dis proportional representation may not be evidence of a discriminatory effect.”[63] Appellees instead claim they argue for “partisan symmetry” rather than proportional representation.[64] However, Chief Justice Roberts quipped that it “[sounded] exactly like proportional representation to [him].”[65] While Justice Kennedy expressed a more open mind, asking whether the most egregious instance of partisan gerrymandering might be unconstitutional,[66] the court would still be required to enforce––or at least approach––a system of proportional representation under the “efficiency gap” standard. This leads to another reason for holding that partisan gerrymandering is a non-justiciable political question: it is not the court’s place to make such structural changes to the government. B. The Supreme Court Should Not Overstep Its Proper Role Prudential considerations also suggest that court should have invoked the political question doctrine in Gill or should invoke it for future partisan gerrymandering claims. Satisfying Baker’s fourth element, it would be impossible to reach an “independent resolution without expressing lack of the respect [towards other] branches of government.”[67] The political question doctrine defines the court’s proper role within the federal government.[68] The framers of the United States Constitution did not design the judiciary as a political body;[69] they intended the court to be “insulated from the chaotic politics that consume the executive and legislative branches of government.”[70] Congress, not the court, should maintain “complete control over the amendment process,” and court decisions should not function as constitutional amendments.[71] Deciding Gill on its merits would fall outside of the court’s appropriate place within the government structure. Thirteen of the fifteen states with voting districts that fail the “efficiency gap” standard in 2018 are Republican states.[72] Implementing that standard thus reflects a willingness for the judiciary to actively reshape the nation’s balance of political power towards one party in particular. This plainly falls beyond the proper role of the judiciary—even the district court, which felt it had standing to hear the case, acknowledged that “state legislative apportionment is the prerogative and therefore a duty of the state government.”[73] Instead, the legislature is the proper forum to address partisan gerrymandering. By answering political questions such as partisan gerrymandering claims, the court would discourage the proper legislative process, almost enabling legislative dysfunction. In addition, adjudicating partisan gerrymandering claims falls outside of the framers’ designed role for the court. In the American two-party political system, partisan gerrymandering claims are inherently political, because revoking political power from one party automatically shifts power to the other party. In this respect, affirming the district court would be an undemocratic fix to a democratic problem, where judges determine the outcome of politically-divided elections—therefore creating “appointed” or “unelected” congressmembers. In Gill, the Supreme Court said it must apply a standard that “ensures that [they] act as judges, and do not engage in policymaking properly left to elected representatives.”[74] Then, in Davis, Justice Burger said “the Court offers not a shred of evidence to suggest, that the Framers of the Constitution intended the judicial power to encompass the making of such fundamental choices about how this Nation is to be governed.”[75] To the contrary, Alexander Hamilton in Federalist No. 78 wanted the judiciary to be the “least dangerous” political branch, whereby judges would act with “neither force nor will.”[76] And James Madison in Federalist No. 51 explained that “legislative authority necessarily predominates” the judiciary,[77] suggesting that legislative resolution to partisan gerrymandering is more appropriate than judicial resolution. But there is another possibility: maybe the court is the perfect place to address partisan gerrymandering. It’s not hard to imagine that voters and the legislature cannot properly fix the issue themselves. Citizens may not be able to vote the gerrymandering party out of office if the maps are too heavily skewed.[78] Their votes cannot fix partisan gerrymandering; their votes are defined by partisan gerrymandering. In that sense, court intervention seems appropriate because although the issue falls outside of the court’s role, the other branches either cannot or will not fix the problem. Political gerrymandering may also exacerbate partisan gridlock throughout the nation,[79] so court intervention appears appropriate to surpass a paralyzed legislature. Others are also concerned that the negative effects of partisan gerrymandering will worsen if not reversed, given the precision and influence of big data technology.[80] Although these are important considerations, they operate on the assumption that the Constitution grants a right to protection from another political party, and, even if it does, the court is able to proscribe manageable standards to protect that right. In Gill, the Supreme Court explained that its “power as judges to ‘say what the law is’...rests not on the default of politically accountable officers.”[81] On balance, it is simply improper and unworkable “to inject the courts into the most heated partisan issues.”[82] C. Judicial HyperPartisanship Renders Adjudication on the Merits Inappropriate There are legitimate concerns that the court cannot prevent its own bias and achieve an “independent resolution,” again satisfying Baker’s fourth factor.[83] Failing to invoke the political question doctrine would demonstrate a “lack of respect” for the Wisconsin state legislature, because the Justices could not redesign Wisconsin’s legislature without imposing their own ideologies. Alternatively, this piece proposes that “judicial hyper-partisanship rendering adjudication inappropriate” functions as a new factor for determining non-justiciable political questions. This proposed factor would (1) be consistent with the Baker factors, (2) function as a “prudential consideration” which is one aspect of the political question doctrine,[84] and (3) fit seamlessly into the political question doctrine’s overall purpose to ensure the proper role of the court. While this proposition deserves full discussion at another time, it highlights the fact that the court could proffer an entirely new justification for invoking the political question doctrine, since the six Baker factors are non-exhaustive.[85] Irrespective of which “factor” applies, partisan polarization is increasing at all levels of government.[86] A highly-politicized Supreme Court is relatively new, though: “before 2010, the Court never had clear ideological blocs that coincided with party lines.”[87] Authorities like Richard Posner now believe “the Supreme Court is not an ordinary court but a political court...strongly influenced in making its decisions by the political beliefs of the judges.”[88] And empirical evidence proves this. Justices now vote along party lines more frequently in politically-charged cases. Less than two percent of the court’s decisions were 5-4 between 1801 and 1940, but in 2005, this rate topped 20 percent[89] and even spiked to 30 percent in 2006 and 2008.[90] The Senate’s Supreme Court confirmation process is another indicator: the four most senior Justices on the court received less than 21 negative votes on average, while the five newest Justices received more than 40 negative votes on average.[91] The recent cases of Judge Garland, Justice Gorsuch, and Justice Kavanaugh likewise illustrate how judicial office now seems defined by partisanship from the start.[92] Hyperpartisan judicial decisions are detrimental to a well-functioning judiciary. Chief Justice Roberts has expressed concern that the increase in 5-4 decisions erodes the public’s confidence in the court “as a partisan institution,” threatening its credibility and legitimacy.[93] Lawyers have also started preying on the Justices’ partisanship, as “more and more appellate litigators have come to appreciate that the federal ‘courts are a sort of untapped resource for pursuing [a political party’s] agenda.’”[94] On the other hand, maybe the court could have decided Gill on the merits without the bias seen in recent decades.[95] For example, the National Association for the Advancement of Colored People (NAACP) asserts that “gerrymandering isn’t just a political fight between the parties...‘both Democratic and Republican legislatures have used the power of the state to enact extreme partisan gerrymanders.’”[96] At least one poll shows bipartisan voter consensus against partisan gerrymandering.[97] And several Republicans—not just Democrats—publicly advocate against it.[98] For example, a group of Republicans including Arnold Schwarzenegger, John Kasich, and Bob Dole filed an amicus brief asserting that if the “Court does not stop partisan gerrymanders, partisan politicians will be emboldened to enact ever more egregious gerrymanders...That result would be devastating for our democracy.”[99] Alternatively, maybe adjudicating the merits would not have displayed a lack of respect for Wisconsin’s legislature because the current Justices are not to blame for hyper-partisanship. Decades ago, the court said that “politics and political considerations are inseparable from districting and apportionment...The reality is that districting inevitably has and is intended to have substantial political consequences.”[100] Others assert that judicial impartiality is a myth[101] and that law is unavoidably political.[102] Yet more argue that “judges are inevitably political actors, and hence their decisions are ultimately based on their ideological convictions.”[103] If partisanship is unavoidable, maybe the court should have decided Gill on its merits anyway. It is also unclear that invoking the political question doctrine actually eliminates the negative effects of a political decision. Just as adjudication on the merits favors the plaintiff’s political party and disfavors the defendant’s party, not ruling on the merits favors the defendant’s party and disfavors the plaintiff’s party. In other words, evading the merits of Gill—perhaps under the guise of the political question doctrine—is still a political maneuver.[104] Some case law demonstrates that declining to rule still yields a victor and shapes policy.[105] Nevertheless, passive political maneuvers are at least more palatable than active political maneuvers. Even if the political question doctrine is invoked as a political tool, it cannot be completely arbitrary, because Justices are constrained to provide coherent legal reasoning behind their decisions.[106] On balance, the court should have held in Gill, or should hold in the future, that partisan gerrymandering is a non-justiciable political question, because judicial hyperpartisanship renders the issue inappropriate for judicial resolution—even though there is bipartisan support, hyperpartisanship is not the court’s fault, and the political question doctrine itself resembles a political maneuver. The best advice comes from Justice O’Connor, who, looking back on Bush v. Gore, expressed regret for not invoking the political question doctrine, explaining that “maybe the Court should have said, ‘We’re not going to take it, goodbye’” and that the case “‘stirred up the public’ and ‘gave the Court a less than perfect reputation.’”[107] IV. Refuting the Alternative of Ruling on the Merits Two rationales might support the decision to ignore the political question doctrine and address the merits in Gill, neither of which were reached because the court remanded the case on standing grounds.[108] First, Gill might not involve a political question at all. The court could have held that the “efficiency gap” analysis provides a judicially manageable standard, prudential considerations are irrelevant, and hyperpartisanship will not affect the outcome. Some even argue the political question doctrine does not exist at all.[109] Second, Gill might involve a political question that the court should have addressed anyway––akin to a “justiciable political question.” The court has confronted contentious political questions before.[110] Bush v. Gore (2000) is perhaps most analogous, because it determined the outcome of a political election under the Equal Protection and Due Process clauses. There, the court ignored the political question doctrine, even though the case had high-profile and partisan implications.[111] Others argue this case taught judges the art of political manipulation under the guise of apolitical judiciousness.”[112] Thus, cases like Bush v. Gore may have set precedent for the court to ignore the political question doctrine in Gill. Regardless of the rationale for ignoring the political question doctrine, the merits of Gill implicate the Fourteenth and First Amendments. V. The Fourteenth Amendment Claim Plaintiff-Appellants claimed that partisan gerrymandering violates their Fourteenth Amendment rights.[113] The Equal Protection Clause of the Fourteenth Amendment[114] “guarantees the opportunity for equal participation by all voters in the election of state legislators.”[115] In the context of voting districts, it requires that “seats in both houses of a bicameral state legislature must be apportioned on a population basis.”[116] This protects the “one-person, one-vote” principle enshrined in the Equal Protection Clause.[117] More specifically, partisan gerrymandering “may” create unconstitutional districts if political groups (1) have been “fenced out of the political process,” and (2) have had their voting strength “invidiously minimized.”[118] The purpose is to achieve “fair and effective representation” for all citizens.[119] First, there are credible arguments that voters have been fenced out of the political process, and the alleged “wasted votes” seem to violate the “one-person, one-vote” standard. At oral argument, Justice Ginsburg focused on partisan gerrymandering’s effect of denying individuals of “the precious right to vote,”[120] expressing concern that “if you can stack a legislature in this way, what incentive is there for a voter to exercise his vote?...The result is preordained in most of the districts. Isn’t that -- what becomes of the precious right to vote?” On the other hand, it is more persuasive that partisan gerrymandering does not violate the “one person, one vote” principle, because Plaintiff-Appellants unavoidably seek damages to the Democratic party as a whole,[121] not to “one person.” Unlike the constitutional right to protection from racial gerrymandering, which specifically targets and harms individuals based on their human identity, regardless of who they vote for, partisan gerrymandering is inextricably intertwined with the outcome of a political party rather than individuals who can change their voting preference at any time. Second, Wisconsin’s map seems to satisfy Gaffney’s “invidious” requirement, because it was designed to fix future elections and “the goal of the map...was to ‘determine who’s here 10 years from now.’”[122] This “invidious” trend seems to occur in districts nationwide too, generally hurting Democrats more than Republicans.[123] Commentators note that “the Supreme Court has also picked up on the widespread agreement and has often assumed, at least implicitly, that the drawing of majority-minority districts comes at a cost for the Democratic Party.”[124] Even if partisan gerrymandering seems “invidious” towards Democrats, it is not unconstitutional unless shown to have fenced voters out of the political process. As discussed in Section III, these claims present a lack of judicially-manageable standards to make such a determination. Even if such measurements like the “efficiency gap” are accepted, their use falls outside of the court’s proper role in the government, and even if it falls within the court’s proper role, judicial hyperpartisanship makes such a determination inappropriate. Thus, adjudicating Gill under the Fourteenth Amendment inevitably circles back to the rationale for invoking the political question doctrine in the first place. A. The First Amendment Claim The plaintiffs also argued that partisan gerrymandering caused “wasted votes” and diluted voting power, “unreasonably burden[ing] their First Amendment rights of association and free speech.”[125] The First Amendment states that “Congress shall make no law...abridging the freedom of speech...or the right of the people peaceably to assemble,”[126] and protects individuals from infringement by the states.[127] The court has held that “in the context of partisan gerrymandering...First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights,”[128] bearing resemblance to the Fourteenth Amendment’s “invidious” and “fencing out” elements. A First Amendment analysis at least semantically alleviates problems associated with the Fourteenth Amendment analysis—particularly with respect to prudential considerations and judicial hyperpartisanship. Under a First Amendment analysis, the court would ensure the voting process is fair for all voters, rather than directly comparing the “equality” of two political parties at large. Thus, the court would not have purported to analyze or manipulate the balance of partisan power in Wisconsin’s legislature. By extension, risks associated with judicial hyperpartisanship seem to disappear as well. However, the outcome would have remained the same under the First Amendment—one party wins and one party loses. Justices who wish to manipulate the balance of partisan power could still do so, just under the guise of another constitutional provision. Still, the First Amendment analysis is more appealing than the Fourteenth, because even if the court alters the balance of power, at least it will not be blatant, mitigating concerns about the court’s public reputation and the appearance of bias.[129] Most significantly, the First Amendment would not alleviate the lack of judicially-manageable standards. Measuring the effect of partisan gerrymandering under the First Amendment still requires calculations like the “efficiency gap.” Like the Fourteenth Amendment analysis, the First Amendment analysis inevitably circles back to the rationale for holding that partisan gerrymandering is a non-justiciable political question. V. The Supreme Court’s Ethical Obligations in Gill v. Whitford There aren’t any – at least, not prescribed by law. All federal judges, except Supreme Court Justices, are bound by the Code of Conduct for United States Judges,[130] which provides pertinent guidance in Gill: Canon 1 states “[a] Judge Should Uphold the Integrity and Independence of the Judiciary,” Canon 2 states “[a] Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities...A judge should not allow...political...relationships to influence judicial conduct or judgment,” and Canon 5 states “[a] Judge Should Refrain from Political Activity.”[131] The Code is further buttressed by sections of the non-binding American Bar Association (ABA) Model Code of Judicial Conduct, such as Rule 2.3, which provides that “[a] judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice...including but not limited to...political affiliation.”[132] And Rule 2.4 further complements that “[a] judge shall not permit...political...interests or relationships to influence the judge’s judicial conduct or judgment.”[133] The ABA Code of Judicial Conduct does not apply to the Supreme Court, however.[134] Several Justices have stated they follow it regardless,[135] and all Justices take the Judicial Oath of Office, swearing to “faithfully and impartially discharge and perform all the duties incumbent upon [them].”[136] But the Code remains non-binding and the Oath of Office does not create an enforcement mechanism once Justices take office. The Code thus provides persuasive support for invoking the political question doctrine in Gill. Manipulating the balance of political power in a state legislature would erode the integrity and independence of the judiciary,[137] violating Canon 1. Adjudicating the merits of the claims to propel political agendas would be neither independent nor impartial, violating Canons 2 and 5. Allowing such political bias to influence the decision-making process also stands in the face of ABA Rules 2.3 and 2.4. And under Canon 5, this all would apply whether or not political agendas are the underlying motivation, simply because it would appear improper. Although the Code does not apply to the Supreme Court, the existence of scribed rules isn’t the point of ethics. As Judge Alex Kozinski puts it, “we’d all be better off in a world with fewer rules and a more clear-cut understanding that impartiality and diligence are obligations that permeate every aspect of judicial life—obligations that each judge has the unflagging responsibility to police for himself.”[138] Justices should be held to the highest moral and ethical standards, guided by their own moral compass, even if not required by rule. It’s true that if determined to do so, the Justices can find a way to apply or not apply the political question doctrine to further their political agenda in partisan gerrymandering cases––if that is their goal.[139] But if they wish to invoke the political question doctrine, ethical principles support them. Conclusion After decades of debate and contradictory Supreme Court decisions, Gill v. Whitford presented an opportunity for the Supreme Court to clarify whether partisan gerrymandering is justiciable. The court should have held that partisan gerrymandering is a non-justiciable political question, due to a lack of judicially-manageable standards, the proper role of the judiciary, and judicial hyper-partisanship. Furthermore, alternatives under the First and Fourteenth Amendments carry implications that inevitably circle back to the rationale for invoking the political question doctrine in the first place. While the court is not bound by ethical rules, general ethical principles should have guided the Justices’ own moral compass towards the political question doctrine. Partisan gerrymandering claims, like those presented in Gill v. Whitford , can be analyzed under both the political question doctrine or the First and Fourteenth Amendments. Those analyses lead to drastically different consequences for American politics: adopting the political question analysis would ultimately favor the Republican party, while adopting the First Amendment analysis would ultimately favor the Democratic party. The prevailing analysis has the power to permanently alter the American political landscape. Endnotes [1] Gill v. Whitford , No. 16-1161 (U.S. July 2017): (“Gill isn’t being overhyped: a ruling against extreme gerrymanders could re-jig American politics at the state and national levels for the coming decade and beyond.”); S.M., “Justice Kennedy Will Take Centre Stage during the Supreme Court’s Upcoming Term,” The Economist, August 15, 2017, https://www.economist.com/democracy-in-america/2017/08/15/justice-kennedy-will-takecentre-stage-during-the-supreme-courts-upcoming-term. [2] See Brief for Appellants, Gill v. Whitford , No. 16-1161 (U.S. July 2017). [3] Gill, 138 S. Ct. 1916. [4] Gill, 138 S. Ct. 1916. [5] Gill, 138 S. Ct. 1916. [6] “Gerrymander,” Www.Dictionary.Com , accessed January 5, 2019, https://www.dictionary.com/browse/ gerrymander. [7] Erick Trickey, “Where Did the Term ‘Gerrymander’ Come From?,” Smithsonian, accessed January 5, 2019, https://www.smithsonianmag.com/history/where-did-term-gerrymander-come-180964118/. [8] See Thomas Wolf, “What the Briefs Say About Extreme Gerrymandering | Brennan Center for Justice,” Brennan Center for Justice, September 6, 2017, https://www.brennancenter.org/blog/what-briefs-say-aboutextreme-gerrymandering. [9] Whitford v. Gill, 218 F. Supp. 3d 837, 854 (W.D. Wis. 2016). [10] Whitford, 218 F. Supp. 3d at 854. [11] Whitford, 218 F. Supp. 3d at 853. See also Michael Li and Thomas Wolf, “5 Things to Know About the Wisconsin Partisan Gerrymandering Case,” Brennan Center for Justice, June 19, 2017, https://www.brennancenter.org/blog/5-things-know-about-wisconsin-partisan-gerrymandering-case. [12] Complaint, 14–16, Whitford, 218 F. Supp. 3d 837. [13] Complaint, p. 27–28, Whitford, 218 F. Supp. 3d 837. [14] Whitford, 218 F. Supp. 3d at 910; as amended by Amended Judgment, Whitford v. Gill, No. 15-cv-421-bbc (W.D. Wis. Feb. 22, 2017). [15] Erwin Chemerinsky discussed Gill v. Whitford at a Federalist Society event the author attended in Los Angeles. See also Azam Nizamuddin, John Pcolinski, and Tim Klein, eds., “Supreme Court Review,” DCBA Brief | The Journal of The DuPage County Bar Association 30 (October 2017), https://www.dcba.org/mpage/vol301017art3. (“According to Erwin Chemerinsky...‘There is really no issue more important than whether partisan gerrymandering should continue.’”). [16] Nizamuddin et al, “Supreme Court Review.” (“Gill v. Whitford is a case which may have implications far beyond Wisconsin.”). [17] See, e.g., Wolf, “What the Briefs Say About Extreme Gerrymandering”; Gill, 138 S. Ct. at 1934. [18] S.M., “Justice Kennedy Will Take Centre Stage”; Gill, 138 S. Ct. 1916. [19] See Gwynne Skinner, “Misunderstood, Misconstrued, and Now Clearly Dead: The ‘Political Question Doctrine’ as a Justiciability Doctrine,” Journal of Law and Politics 29 (May 28, 2014): 427. [20] See Marbury v. Madison, 5 U.S. 137 (1803). [21] Baker v. Carr, 369 U.S. 186, 209–10 (1962). [22] Gaffney v. Cummings, 412 U.S. 735, 754 (1973). [23] Gaffney v. Cummings, 412 U.S. at 754 (emphasis added). [24] Gaffney v. Cummings, 412 U.S. at 754. [25] Davis v. Bandemer, 478 U.S. 109, 143 (1986). [26] Davis v. Bandemer, 478 U.S. at 125. [27] Davis v. Bandemer, 478 U.S. at 152 (1986). (O’Connor, J., concurring). [28] Vieth v. Jubelirer, 541 U.S. 267, 281 (2004). [29] See Vieth v. Jubelirer, 541 U.S. at 306 (Kennedy, J., concurring); at 317 (Stevens, J., dissenting); at 343 (Souter, J., dissenting); at 355 (Breyer, J., dissenting). [30] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 414–15 (2006). [31] League of United Latin Am. Citizens v. Perry, 548 U.S. at 414. [32] League of United Latin Am. Citizens v. Perry, 548 U.S. at 461. (Stevens, J., concurring in part and dissenting in part). [33] Gill, 138 S. Ct. at 1929. [34] Gill, 138 S. Ct. at 1931. (“We leave for another day consideration of other possible theories of harm not presented here and whether those theories might present justiciable claims giving rise to statewide remedies.”) [35] See generally Chris Michel, “There’s No Such Thing as a Political Question of Statutory Interpretation: The Implications of Zivotofsky v. Clinton,” The Yale Law Journal 123, no. 1 (October 2013), https://www.yalelawjournal.org/comment/theres-no-such-thing-as-a-political-question-of-statutory-interpretation-theimplications-of-zivotofsky-v-clinton; Louis Michael Seidman, “‘The Secret Life of the Political Question Doctrine’ by Louis Michael Seidman,” 37 J. Marshall L. Rev. 441-480 (2004), accessed January 5, 2019, https://scholarship.law.georgetown.edu/facpub/563/. [36] Vieth v. Jubelirer, 541 U.S. 267, at 277. (Internal citations omitted). [37] Though unclear, some argue the political question doctrine has evolved to “eliminate judicial consideration of the prudential aspects of the political question doctrine or severely limit the application of Baker’s second factor—a lack of judicial standards.” Jared Cole, “The Political Question Doctrine: Justiciability and the Separation of Powers,” CRS Report (Congressional Research Service, December 23, 2014), https://fas.org/sgp/crs/misc/R43834.pdf, 24. [38] Cole, “The Political Question Doctrine,” 1. See also Charles A. Wright and Arthur M. Miller et al., “§3534.1 Political Questions—Political Issues and Separation of Powers,” in Federal Practice and Procedure, 3rd ed., vol. 13C, 2015. (The political question doctrine is derived from “the conclusion that in the separation of federal powers, certain matters are confined to the political branches”). [39] Baker v. Carr, 369 U.S. 186, at 217. (“The doctrine of which we treat is one of ‘political questions,’ not one of ‘political cases.’”). See also Cole, “The Political Question Doctrine”; Gill, 138 S. Ct. at 1931. (“It is important to distinguish the political question doctrine from cases presenting political issues. Courts adjudicate controversies with political ramifications on a regular basis...The political question doctrine applies to issues thatcourts determine are best resolved within the politically accountable branches of government—Congress or the executive branch.”). [40] Neal Devins and Lawrence Baum, “Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court,” Supreme Court Review 2016 (January 30, 2017), https://papers.ssrn.com/abstract=2432111. (Citing Nomination of John Roberts, 109th Cong, 1st Sess. (Sept 22, 2005), in 151 Cong. Rec. 21032 (remarks of Senator Obama)). [41] Ronald K.L. Collins and David K. Skover, The Judge: 26 Machiavellian Lessons (Oxford, New York: Oxford University Press, 2017), 94. [42] Baker v. Carr, 369 U.S. 186, at 217. [43] Vieth v. Jubelirer, 541 U.S. 267, at 277. [44] Oral Argument Tr. at 40, Gill v. Whitford, No. 16-1161. (Questioning by Chief Justice Roberts). [45] Nate Cohn and Quoctrung Bui, “How the New Math of Gerrymandering Works,” The New York Times, October 3, 2017, sec. The Upshot, https://www.nytimes.com/interactive/2017/10/03/upshot/how-the-new-mathof-gerrymandering-works-supreme-court.html, https://www.nytimes.com/interactive/2017/10/03/upshot/howthe-new-math-of-gerrymandering-works-supreme-court.html. [46] Cohn and Bui, “How the New Math of Gerrymandering Works.” [47] Cohn and Bui, “How the New Math of Gerrymandering Works.” [48] Cohn and Bui, “How the New Math of Gerrymandering Works.” [49] See Whitford v. Gill, 218 F. Supp. 3d at 964. (Greisbach, J., dissenting). [50] Whitford v. Gill, 218 F. Supp. 3d at 853. [51] Gill, 138 S. Ct. at 1938. [52] Note that all of these states except Nevada voted Republican in the 2017 presidential election. See Brief for the States of Texas, Arizona, Arkansas, Indiana, Kansas, Louisiana, Michigan, Missouri, Nevada, Oklahoma, South Carolina, and Utah as Amici Curiae in Support of Appellants, Gill v. Whitford, No. 16-1161, 3. [53] Brief for the States of Texas et al., Gill v. Whitford, No. 16-1161, 2. [54] Davis v. Bandemer, 478 U.S. at 158. (Burger, J., concurring). [55] Michael Li and Thomas P. Wolf, “Supreme Court Has Historic Chance to End Extreme Gerrymandering,” The American Prospect, June 21, 2017, https://prospect.org/article/supreme-court-has-historic-chance-endextreme-gerrymandering. (“Extreme [political gerrymandering] maps...account for at least 16 and maybe 17 seats in the Republican majority in the House of Representatives. That’s a sizeable chunk of the 24 seats Democrats would need to regain control of the House in 2018.”). [56] Whitford v. Gill, 218 F. Supp. 3d at 944. [57] Wolf, “What the Briefs Say About Extreme Gerrymandering.” [58] See Wolf, “What the Briefs Say About Extreme Gerrymandering.” (Stating there are “two factors [that] would narrow down the range of potentially unconstitutional maps to just a handful this cycle”). [59] Wolf, “What the Briefs Say About Extreme Gerrymandering.” [60] Whitford v. Gill, 218 F. Supp. 3d at 904. (“In a purely proportional representation system, a party would be expected to pick up votes and seats at a one-to-one ratio.”). [61] See Oral Argument Tr. at 41, Gill v. Whitford, No. 16-1161. (Questioning by Chief Justice Roberts) (“Proportional representation . . . has never been accepted as a political principle in the history of this country.”). See also League of United Latin Am. Citizens v. Perry, 548 U.S. at 419. [62] Davis v. Bandemer, 478 U.S. at 132. [63] Whitford v. Gill, 218 F. Supp. 3d at 906. [64] Oral Argument Tr. at 41, Gill v. Whitford, No. 16-1161. [65] Oral Argument Tr. at 41, Gill v. Whitford, No. 16-1161. [66] Oral Argument Tr. at 26, Gill v. Whitford, No. 16-1161. [67] See Baker v. Carr, 369 U.S. at 217. [68] See Baker v. Carr, 369 U.S. at 278. [69] See, e.g., Alexander Hamilton, “Federalist No. 78: The Judiciary Department,” May 28, 1788, http://avalon.law.yale.edu/18th_century/fed78.asp. [70] Lucas Rodriguez, “The Troubling Partisanship of the Supreme Court,” Stanford Politics (blog), January 7, 2016, https://stanfordpolitics.org/2016/01/07/troubling-partisanship-supreme-court/. [71] Wright and Miller et al., “§ 3534.1 Political Questions—Political Issues and Separation of Powers.” [72] Cohn and Bui, “How the New Math of Gerrymandering Works.” [73] Whitford v. Gill, 218 F. Supp. 3d at 883. [74] Gill v. Whitford, 138 S. Ct. at 1923. (Emphasis in original). [75] Davis v. Bandemer, 478 U.S. at 145. (Burger, J., concurring). [76] Hamilton, Oral Argument Tr. at 41, Gill v. Whitford, No. 16-1161. (“The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.”). See also Collins & Skover, The Judge. [77] James Madison, “The Federalist #51,” February 6, 1788, http://constitution.org/fed/federa51.htm. [78] Li & Wolf, “5 Things to Know About the Wisconsin Partisan Gerrymandering Case.” [79] A bipartisan group of 36 members of Congress, “have decried partisan gerrymandering as ‘a substantial cause of the dysfunction of contemporary politics.’” “Bipartisan Support for Whitford | Brennan Center for Justice,” Brennan Center for Justice, accessed January 6, 2019, https://www.brennancenter.org/bipartisansupport-whitford. [80] Wolf, “What the Briefs Say About Extreme Gerrymandering.” [81] Gill v. Whitford, 138 S. Ct. at 1929. [82] Davis v. Bandemer, 478 U.S. at 145. (O’Connor, J., dissenting), (emphasis added). [83] Baker v. Carr, 369 U.S. at 217. [84] See Zachary Baron Shemtob, “The Political Question Doctrines: Zivotofsky v. Clinton and Getting Beyond the Textual–Prudential Paradigm,” The Georgetown Law Journal 4 (2016): 1013-7. [85] See Baker v. Carr, 369 U.S. at 217. [86] Rodriguez, “The Troubling Partisanship of the Supreme Court.” [87] Devins and Baum, “Split Definitive,” 301. [88] Richard Posner, “The Supreme Court Is a Political Court. Republicans’ Actions Are Proof.,” Washington Post, March 9, 2016, https://www.washingtonpost.com/opinions/the-supreme-court-is-a-political-courtrepublicans-actions-are-proof/2016/03/09/4c851860-e142-11e5-8d98-4b3d9215ade1_story.html. (Discussing Republicans senators’ decision to not consider President Obama’s nominations to the Supreme Court). [89] Rodriguez, “The Troubling Partisanship of the Supreme Court”; David Paul Kuhn, “The Incredible Polarization and Politicization of the Supreme Court,” The Atlantic, June 29, 2012, https://www.theatlantic.com/politics/archive/2012/06/the-incredible-polarization-and-politicization-of-the-supreme-court/259155/. [90] Kuhn, “The Incredible Polarization and Politicization of the Supreme Court.” [91] Rodriguez, “The Troubling Partisanship of the Supreme Court.” [92] Jessica Yarvin and Daniel Bush, “Is the Hyper-Partisan Supreme Court Confirmation Process ‘the New Normal’?” PBS NewsHour, September 13, 2018, https://www.pbs.org/newshour/nation/is-the-hyper-partisansupreme-court-confirmation-process-the-new-normal. [93] Jeffrey Rosen, “The Supreme Court Has a Legitimacy Crisis, But Not For the Reason You Think |,” New Republic, June 11, 2012, https://newrepublic.com/article/103987/the-supreme-court-has-legitimacy-crisisnot-the-reason-you-think. But other studies suggest Justice Roberts may be wrong on this point, because most Americans don’t know or understand the political allegiances of the Justices. [94] Collins & Skover, The Judge, xiii. [95] See Devins & Baum, Devins and Baum, “Split Definitive,” 314. [96] Wolf, “What the Briefs Say About Extreme Gerrymandering.” Note also, this is not completely correct. See Cohn & Bui, “How the New Math of Gerrymandering Works,” (showing that nearly all maps violating the “efficiency gap” are Republican districts). [97] Li & Wolf, “Supreme Court has Historic Chance to End Extreme Gerrymandering.” (“The most recent Harris poll shows that 74 percent of Republicans, 73 percent of Democrats, and 71 percent of independents believe that politicians shouldn’t have a hand in drawing lines that benefit them.”). [98] See generally Brief of Republican Statewide Officials as Amici Curiae in Support of Appellees, Gill v. Whitford, No. 16-1161. See also Wolf, “What the Briefs Say About Extreme Gerrymandering.” [99] Brief of Republican Statewide Officials as Amici Curiae in Support of Appellees, Gill v. Whitford, No. 16-1161. See also Wolf, “What the Briefs Say About Extreme Gerrymandering. [100] Gaffney v. Cummings, 412 U.S. at 753. [101] Collins & Skover, The Judge, 15. [102] Collins & Skover, The Judge, xii–xiii. (“Law is political. . . . Whatever the political stripes, the charge is always the same: Judge-made law has become politicized.”). [103] Cass R. Sunstein, “Moneyball for Judges,” The New Republic, April 10, 2013, https://newrepublic.com/article/112683/moneyball-judges. [104] See Shemtob, “The Political Question Doctrines”; Madison, “The Federalist #51.” [105] Collins & Skover, The Judge, 33. [106] Shemtob, “The Political Question Doctrines,” 1027. [107] Jeffrey Toobin, “Justice O’Connor Regrets,” The New Yorker, May 6, 2013, https://www.newyorker.com/news/daily-comment/justice-oconnor-regrets. [108] Gill v. Whitford, 138 S. Ct. at 1937–38. [109] See Michel, “There’s No Such Thing as a Political Question of Statutory Interpretation,” 143–44. [110] See D.C. v. Heller, 554 U.S. 570, 603 (2008). See also Collins & Skover, The Judge, 71: (“Originalism, textualism, historicism—they were all isms perfectly suited to Justice Scalia’s conservative constitutional jurisprudence.”). [111] Collins & Skover, The Judge; Cole, “The Political Question Doctrine,” 94. [112] Collins & Skover, The Judge, 102. [113] Complaint, p. 24–27, Whitford v. Gill, 218 F. Supp. 3d 837. [114] “Constitution of the United States - Amendment XIV” (United States Senate), accessed January 6, 2019, https://www.senate.gov/civics/constitution_item/constitution.htm#amendments. [115] Reynolds v. Sims, 377 U.S. 533, 565–66 (1964). [116] Reynolds v. Sims, 377 U.S. at 568. [117] Whitford v. Gill, 218 F. Supp. 3d at 844. See also Reynolds v. Sims, 377 U.S. at 558. [118] Gaffney v. Cummings, 412 U.S. at 754 (emphasis added). [119] Reynolds v. Sims, 377 U.S. at 565–66. [120] Oral Argument Tr. at 24, Gill v. Whitford, No. 16-1161. (Questioning by Justice Ginsburg). [121] See, e.g., Complaint, p. 2, Whitford v. Gill, 218 F. Supp. 3d 837. (“Extreme partisan gerrymandering is also contrary to core democratic values because it enables a political party to win more legislative districts.”) (emphasis added). [122] Whitford v. Gill, 218 F. Supp. 3d at 853. [123] See Cohn & Bui, “How the New Math of Gerrymandering Works.” [124] Adam B. Cox and Richard T. Holden, “Reconsidering Racial and Partisan Gerrymandering,” The University of Chicago Law Review 78, no. 2 (2011): 560. [125] Complaint, p. 2, Whitford v. Gill, 218 F. Supp. 3d 837. [126] “Constitution of the United States - Amendment I” (United States Senate), accessed January 6, 2019, https://www.senate.gov/civics/constitution_item/constitution.htm#amendments. [127] Williams v. Rhodes, 393 U.S. 23, 30–31 (1968). [128] Vieth v. Jubelirer, 541 U.S. at 314. [129] See Kuhn, “The Incredible Polarization and Politicization of the Supreme Court.” [130] The Code omits the Supreme Court from coverage. See “Code of Conduct for United States Judges | 69 F.R.D. 273,” United States Courts, 1973, https://www.uscourts.gov/judges-judgeships/code-conduct-unitedstates-judges. (“This Code applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.”). [131] “Code of Conduct for United States Judges | 69 F.R.D. 273,” United States Courts. [132] American Bar Association, “Model Code of Judicial Conduct,” August 16, 2018, https://www.americanbar.org/groups/professional_responsibility/publications/model_code_of_judicial_conduct/. [133] American Bar Association, “Model Code of Judicial Conduct.” [134] See “Code of Conduct for United States Judges | 69 F.R.D. 273,” United States Courts. 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