Constitutional Norm Entrepreneuring


Paper by Oren Tamir: “Everyone is obsessed today with constitutional norms. They have powerfully penetrated our vocabulary and are mentioned with dizzying frequency. We now know that any account of our valuable constitutional practices cannot end with just politics or law and must also include norms. What is further unique about the current moment in our political era is that an important subset of these norms appears to be exceedingly fragile and is under persistent attack. Some even suggest that the erosion of constitutional norms is at the heart of a global trend of democratic recession. But how precisely do constitutional norms change and ultimately collapse? And is there something actors can do to influence these processes?

This Article’s goal is to explore these questions, both in general and in the context of the alleged trend of democratic recession in particular. It argues that although norms can be understood, following H.L.A Hart, as a “primitive” component in our political systems (given the way they differ from formal law), constitutional norms can in fact attain some of the credentials Hart believed could be attributed exclusively to law. More specifically, the Article claims that we can fashion something akin to “rules of change” and “rules of adjudication” in relation to constitutional norms and accordingly gain a firmer grasp of how they develop, change, and ultimately break down and of how conflicts about constitutional norms are “adjudicated” within our politics. As for “rules of change” for norms, the Article argues that constitutional norms tend to change in predictable ways and as a result of the working of several distinctive mechanisms. As for “rules of adjudication” for norms, the Article identifies a set of concrete strategies that constitutional norm entrepreneurs (who wish to change present norms including bringing forth their demise) and constitutional norm anti-preneurs (who wish to safeguard present norms) can use to try to manipulate constitutional norms to achieve their desired, and oppositional, ends.

The Article concludes by implementing that framework to our present moment of democratic recession. It asks, in other words, what constitutional norm anti-preneurs can do to halt further encroachment upon valuable constitutional norms that appear crucial to the resilience of democratic systems, both in general and in the United States….(More)”.

How Congress can improve productivity by looking to the rest of the world


Beth Noveck and Dane Gambrell at the Hill: “…While an important first step in helping to resume operations, Congress needs to follow the lead of those many legislatures around the world who have changed their laws and rules and are using technology to continue to legislate, conduct oversight and even innovate. 

Though efforts to restart by adopting proxy voting are a step in the right direction, they do not go far enough to create what Georgetown University’s Lorelei Kelly calls the “modern and safe digital infrastructure for the world’s most powerful national legislature.” 

Congress has all but shut down since March. While the Senate formally “re-opened” on May 4, the chamber is operating under restrictive new guidelines, with hearings largely closed to the public and lawmakers advised to bring only a skeleton crew to run their offices. Considering that the average age of a senator is 63 and the average age of a Member of the House is 58, this caution comes as no surprise.

Yet when we take into account that parliaments around the world from New Zealand to the Maldives are holding committee meetings, running plenary sessions, voting and even engaging the public in the lawmaking process online, we should be asking Congress to do more faster. 

Instead, bitter partisan wrangling — with Republicans accusing Democrats of taking advantage of social distancing to launch a power grab and Democrats accusing Republicans of failing to exercise oversight — is delaying the adoption of long available and easy to use technologies. More than a left-right issue, moving online is a top-down issue with leadership of both parties using the crisis to consolidate power.

Working online

The Parliament of the United Kingdom, for example, is one of dozens of legislatures turning to online video conferencing tools such as Zoom, Microsoft Teams, Cisco Web Meetings and Google Hangouts to do plenary or committee meetings. After 800 years, lawmakers in the House of Commons convened the first-ever “virtual Parliament” at the end of April. In this hybrid approach, some MPs were present in the legislative chamber while most joined remotely using Zoom…(More)”.

Considering the Source: Varieties of COVID-19 Information


Congressional Research Service: “In common parlance, the terms propaganda, misinformation, and disinformation are often used interchangeably, often with connotations of deliberate untruths of nefarious origin. In a national security context, however, these terms refer to categories of information that are created and disseminated with different intent and serve different strategic purposes. This primer examines these categories to create a framework for understanding the national security implications of information related to the Coronavirus Disease 2019 (COVID-19) pandemic….(More)”.

Testing Transparency


Paper by Brigham Daniels, Mark Buntaine and Tanner Bangerter: “In modern democracies, governmental transparency is thought to have great value. When it comes to addressing administrative corruption and mismanagement, many would agree with Justice Brandeis’s observation that sunlight is the best disinfectant. Beyond this, many credit transparency with enabling meaningful citizen participation.

But even though transparency appears highly correlated with successful governance in developed democracies, assumptions about administrative transparency have remained empirically untested. Testing effects of transparency would prove particularly helpful in developing democracies where transparency norms have not taken hold or only have done so slowly. In these contexts, does administrative transparency really create the sorts of benefits attributed to it? Transparency might grease the gears of developed democracies, but what good is grease when many of the gears seem to be broken or missing entirely?

This Article presents empirical results from a first-of-its-kind field study that tested two major promises of administrative transparency in a developing democracy: that transparency increases public participation in government affairs and that it increases government accountability. To test these hypotheses, we used two randomized controlled trials.

Surprisingly, we found transparency had no significant effect in almost any of our quantitative measurements, although our qualitative results suggested that when transparency interventions exposed corruption, some limited oversight could result. Our findings are particularly significant for developing democracies and show, at least in this context, that Justice Brandeis may have oversold the cleansing effects of transparency. A few rays of transparency shining light on government action do not disinfect the system and cure government corruption and mismanagement. Once corruption and mismanagement are identified, it takes effective government institutions and action from civil society to successfully act as a disinfectant….(More)”.

The Analog City and the Digital City


L. M. Sacasas at The New Atlantis: “…The challenges we are facing are not merely the bad actors, whether they be foreign agents, big tech companies, or political extremists. We are in the middle of a deep transformation of our political culture, as digital technology is reshaping the human experience at both an individual and a social level. The Internet is not simply a tool with which we do politics well or badly; it has created a new environment that yields a different set of assumptions, principles, and habits from those that ordered American politics in the pre-digital age.

We are caught between two ages, as it were, and we are experiencing all of the attendant confusion, frustration, and exhaustion that such a liminal state involves. To borrow a line from the Marxist thinker Antonio Gramsci, “The crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear.”

Although it’s not hard to see how the Internet, given its scope, ubiquity, and closeness to human life, radically reshapes human consciousness and social structures, that does not mean that the nature of that reshaping is altogether preordained or that it will unfold predictably and neatly. We must then avoid crassly deterministic just-so stories, and this essay is not an account of how digital media will necessarily change American politics irrespective of competing ideologies, economic forces, or already existing political and cultural realities. Rather, it is an account of how the ground on which these realities play out is shifting. Communication technologies are the material infrastructure on which so much of the work of human society is built. One cannot radically transform that infrastructure without radically altering the character of the culture built upon it. As Neil Postman once put it, “In the year 1500, fifty years after the printing press was invented, we did not have old Europe plus the printing press. We had a different Europe.” So, likewise, we may say that in the year 2020, fifty years after the Internet was invented, we do not have old America plus the Internet. We have a different America….(More)”.

Lie Machines: How to Save Democracy from Troll Armies, Deceitful Robots, Junk News Operations, and Political Operatives


Book by Philip N. Howard: “Artificially intelligent “bot” accounts attack politicians and public figures on social media. Conspiracy theorists publish junk news sites to promote their outlandish beliefs. Campaigners create fake dating profiles to attract young voters. We live in a world of technologies that misdirect our attention, poison our political conversations, and jeopardize our democracies. With massive amounts of social media and public polling data, and in-depth interviews with political consultants, bot writers, and journalists, Philip N. Howard offers ways to take these “lie machines” apart.
 
Lie Machines is full of riveting behind-the-scenes stories from the world’s biggest and most damagingly successful misinformation initiatives—including those used in Brexit and U.S. elections. Howard not only shows how these campaigns evolved from older propaganda operations but also exposes their new powers, gives us insight into their effectiveness, and explains how to shut them down…(More)”.

Continuity in Legislatures Amid COVID-19


Blog by Sam DeJohn, Anirudh Dinesh, and Dane Gambrell: “As COVID-19 changes how we work, governments everywhere are experimenting with new ways to adapt and continue legislative operations under current physical restrictions. From city councils to state legislatures and national parliaments, more public servants are embracing and advocating for the use of new technologies to convene, deliberate, and vote.

On April 20th, GovLab published an initial overview of such efforts in the latest edition of the CrowdLaw Communique. As the United States Congress wrestles with the question of whether to allow remote voting, the GovLab has compiled an update on those international and state legislatures that are the furthest ahead with the use of new technology to continue operations.

NORTH AMERICA

In the US, On April 16, over 60 former members of Congress participated in a “Mock Remote Hearing” exercise to test the viability of online proceedings during the COVID-19 pandemic.

In Kentucky, when they last met on April 1, that State’s House of Representatives adopted new rules allowing lawmakers to vote remotely by sending in photos of a ballot to designated managers on the House Floor.” (WFPL). Lawmakers have also altered voting procedures to limit the number of lawmakers on the House floor. Members will vote in groups of 25 and may vote by paper ballot (NCSL).

New Jersey lawmakers made history on March 25 when members of the General Assembly called into a conference line to cast their votes remotely on several bills related to the coronavirus pandemic. NJ lawmakers moved 12 bills that day via remote voting.

On the west coast of the United States, the city council of Kirkland, Washington, recently held its first virtual city council meeting. Many cities and counties in California have also begun holding their meetings via Zoom.

As compiled by the National Council of State Legislatures, states that have changed rules — many just in the past few weeks — to allow full committee action and/or remote voting include: Iowa, Kentucky, Minnesota, New Jersey, North Carolina, Utah, and Vermont. Other states have specifically said they are seriously considering allowing remote action, including New Hampshire, New Mexico, New York, and Wyoming.

EUROPE

In the European Union, Parliament is temporarily allowing remote participation to avoid spreading COVID-19 (Library of Congress). With regard to voting, all members, even those participating in person, will receive a ballot sent by email to their official email address. The ballot, which must contain the name and vote of the MP in a readable form and the MP’s signature, must be returned from their official email address to the committee or plenary services in order to be counted. The ballot must be received in the dedicated official European Parliament mailbox by the time the vote is closed.

In Spain, MPs have been casting votes using the Congress’s intranet system, which has been in place since 2012. Rather than voting in real time, voting is typically open for a two-hour period before the session to vote for the alternative or amendment proposals and for a two-hour period following the session in which the proposals are debated to vote the final text….(More)”.

The digital tools that can keep democracy going during lockdown


Rosalyn Old at Nesta: “In the midst of the COVID-19 global pandemic, governments at all levels are having to make decisions to postpone elections and parliamentary sessions, all while working remotely and being under pressure to deliver fast-paced and effective decision-making.

In times of crisis, there can be a tension between the instinct to centralise decision-making for efficiency, sacrificing consultation in the process, and the need to get citizens on board with plans for large-scale changes to everyday life. While such initial reactions are understandable, in the current and next phases we need a different approach – democracy must go on.

Effective use of digital tools can provide a way to keep parliamentary and government processes going in a way that enhances rather than threatens democracy. This is a unique opportunity to experiment with digital methods to address a number of business-as-usual pain points in order to support institutions and citizen engagement in the long term.

Digital tools can help with the spectrum of decision-making

While digital tools can’t give the answers, they can support the practicalities of remote decision-making. Our typology of digital democracy shows how digital tools can be used to harness the wisdom of the crowd in different stages of a process:A typology of digital democracy

A typology of digital democracy

Digital tools can collect information from different sources to provide an overview of the options. To weigh up pros and cons, platforms such as Your Priorities and Consul enable people to contribute arguments. If you need a sense of what is important and to try to find consensus, Pol.is and Loomio may help. To quickly gauge support for different options from stakeholders, platforms such as All Our Ideas enable ranking of a live bank of ideas. If you need to gather questions and needs of citizens, head to platforms like Sli.do or online forms or task management tools like Trello or Asana….(More)”.

Misinformation During a Pandemic


Paper by Leonardo Bursztyn et al: “We study the effects of news coverage of the novel coronavirus by the two most widely-viewed cable news shows in the United States – Hannity and Tucker Carlson Tonight, both on Fox News – on viewers’ behavior and downstream health outcomes. Carlson warned viewers about the threat posed by the coronavirus from early February, while Hannity originally dismissed the risks associated with the virus before gradually adjusting his position starting late February. We first validate these differences in content with independent coding of show transcripts. In line with the differences in content, we present novel survey evidence that Hannity’s viewers changed behavior in response to the virus later than other Fox News viewers, while Carlson’s viewers changed behavior earlier. We then turn to the effects on the pandemic itself, examining health outcomes across counties.

First, we document that greater viewership of Hannity relative to Tucker Carlson Tonight is strongly associated with a greater number of COVID-19 cases and deaths in the early stages of the pandemic. The relationship is stable across an expansive set of robustness tests. To better identify the effect of differential viewership of the two shows, we employ a novel instrumental variable strategy exploiting variation in when shows are broadcast in relation to local sunset times. These estimates also show that greater exposure to Hannity relative to Tucker Carlson Tonight is associated with a greater number of county-level cases and deaths. Furthermore, the results suggest that in mid-March, after Hannity’s shift in tone, the diverging trajectories on COVID-19 cases begin to revert. We provide additional evidence consistent with misinformation being an important mechanism driving the effects in the data. While our findings cannot yet speak to long-term effects, they indicate that provision of misinformation in the early stages of a pandemic can have important consequences for how a disease ultimately affects the population….(More)”.

Transparency Deserts


Paper by Christina Koningisor: “Few contest the importance of a robust transparency regime in a democratic system of government. In the United States, the “crown jewel” of this regime is the Freedom of Information Act (FOIA). Yet despite widespread agreement about the importance of transparency in government, few are satisfied with FOIA. Since its enactment, the statute has engendered criticism from transparency advocates and critics alike for insufficiently serving the needs of both the public and the government. Legal scholars have widely documented these flaws in the federal public records law.

In contrast, scholars have paid comparatively little attention to transparency laws at the state and local level. This is surprising. The role of state and local government in the everyday lives of citizens has increased in recent decades, and many critical government functions are fulfilled by state and local entities today. Moreover, crucial sectors of the public namely, media and advocacy organizations—rely as heavily on state public records laws as they do on FOIA to hold the government to account. Yet these state laws and their effects remain largely overlooked, creating gaps in both local government law and transparency law scholarship.

This Article attempts to fill these gaps by surveying the state and local transparency regime, focusing on public records laws in particular. Drawing on hundreds of public records datasets, along with qualitative interviews, the Article demonstrates that in contrast with federal law, state transparency law introduces comparatively greater barriers to disclosure and comparatively higher burdens upon government. Further, the Article highlights the existence of “transparency deserts,” or localities in which a combination of poorly drafted transparency laws, hostile government actors, and weak local media and civil society impedes effective public oversight of government.

The Article serves as a corrective to the scholarship’s current, myopic focus on federal transparency law…(More)”.