(From USA to Try Purple Finger Thing for 1012 Elections, The Comedy News Oct. 24, 2011 ("In an effort to stifle double-voting, the Federal Election Commission will be requiring all voters to dip their index fingers in purple indelible ink for the 2012 election."It is time the United States takes a stand against double voters," announced an FEC official. "The purple finger thing has worked in Iraqi elections, and rather be a bunch of hypocrites, the United States should do the purple finger thing too." Political scientists have lauded the purple finger thing for its ability to keep voters from voting more than once. They have also said the purple finger thing is a great way of hazing apathetic Americans into voting---since their lack of a purple-dipped index finger will indicate that they didn't vote and thus hate freedom."))
Democratic organization centered on the state was conceived for another age. In the 18th century it was plausible to believe that there was a workable direct connection between sovereign (the voter) and agent (elected officials) who could be held accountable for the ways in which they manifested their authority through the apparatus of state (the government). Accountability was plausible as well because it was possible to identify the product of government (law), directly expressed by legislation as command and enforced by through the agents of the government, and to trace the effect of government action (enforcement) to its cause (law) and its author (elected law makers). Moreover, the power of the apparatus of state was also divided so that no one unit of government could exercise the whole of the governmental power delegated to it by the people.
This is all well known; it is still taught to school children and solemnly repeated by those charged with maintaining the appearance of our political culture. But government hasn’t been structured like this in well over a century. Government is now a complex multi-layered administrative apparatus. Law is now used to establish government that itself exercises legislative, executive and judicial power one or more institutional layers beyond officials accountable to voters. The product of that givernment is not law in the classical sense, but increasingly seeks to incorporate the techniques of the monitor and the psychologist to manage behavior rather than to produce conduct rules. Larry Catá Backer, Ruminations XXXVII: From Regimes of Law to Systems of Assessment, From the Outlaw to Deviant, Law at the End of the Day, Jan. 26, 2012.
As a consequence the mechanics of political accountability changes from a focus of natural persons voting for other natural persons to serve them (in the aggregate) in a representative capacity to the mob acting against policy energy from regulatory organs the individual/physical character of democratic governance gives way to an entity/abstract character. Their product (regulation, management, decisions, etc.) cannot be easily attributed to any one or more actors accountable directly to voters.
Moreover, within these administrative organs, power fracture has been reconstituted vertically. Agencies will acquire executive, legislative and judicial authority within the limited framework of the legislation that defines their scope of authority. Such authority is checked only by superior entities--a legislature that is oftentimes in attentive and incapable of effectively monitoring increasingly technical and complex governance, and a judiciary increasingly disposed to deference. With executive, judiciary and legislature interposed between administrative agency and voter, and with the product of such agency both derivative and complex objects of governance, it is hard to understand the manner in which a voter might trace responsibility for administrative acts to legislators or executives standing for office and use the vote to render these officials accountable for the regulatory work of administrative agencies. And indeed, the opposite effect is sometimes true--delegation to agencies make it possible for legislators and executive officials to both encourage administrative agencies to work toward the attainment of governance goals and then to appeal to voters as great crusaders against the excesses of administrative agencies. In the context of international obligations, voting has also become a stylized gesture that must be made but the substantive effect of which is predetermined. The EU plebiscite process suggests the way in which voting might be exercised often until the voting public get the result right. That appeared, for example, in the Irish vote on the EU's Lisbon Treaty!
The product of this governance begotten by law establishing a government apparatus beyond that directly accountable to the individual (exercised through voting) itself also dissipates the supervisory authority of the popular sovereign. At the level of regulation and policy, law sometimes changes character from command to management techniques in the service of policy. A high cost process preserves a power to interview in the deployment of the individual regulations that effect this management―requiring access to bureaucrats and specialized knowledge of the regulatory context and its language. Even less interlocution is permitted with respect to the techniques of management―record keeping, assessment and data generation―which together may produce sometimes substantial substantive effects. Law dissolves into governance; that is the form of law now manages and disciplines behavior. In a sense this is nothing new. The approach was inherent in the way that early-modern Europe and the United States started to manage the behavior of its poor and potentially productive classes. Thus, for example, the UK Welfare Reform act of 2009, and generally Larry Catá Backer, Welfare Reform at the Limit: An Essay on the Futility of ‘Ending Welfare as We Know It,’ 30 Harvard Civil Rights-Civil Liberties Law Review 339 (1995); Larry Catá Backer, By Hook or By Crook: The Drive to Conformity and Assimilation in Liberal and Conservative Poor Relief Theory, 7 Hastings Women’s Law Journal 391 (1996). But this approach to the management of factors in the production of wealth has now been generalized and has infiltrated all forms of governance.
In the face of that sort of totalizing and seamless pour of regulation/law, against what may a population seek accountability and against whom? An individual no longer responds to or may draw direct connections for the purpose of accountability between specific acts and elected officials. The connection between individual and individual act is lost; accountability loses its mornings in specifics. The individual is confronted by a state apparatus in which no one individual or group is responsible and in which no rule or single set of rules is the source or cause. The interposition of an administrative apparatus between elected officials and the electorate both fractures and diffuses. The diffusion of command among an interlocked set of statutes, regulations, conditions, procedures and assessment mechanics provides a seamless space within which the fabric of governance makes traditional notions of accountability irrelevant.
The old model grounded in the ancient simple formula--sovereign representative body issuing commands--has been supplanted by one in which the sovereign no longer directly commands. Indeed, the sovereign may no longer be sovereign--elected officials come and go but the administrative apparatus is staffed with a permanent body of officials. But elected officials do come and go, and that, to some extent, produces some effect on the permanent body of governors and the production by them of administrative regulations. A population subject to constant management for optimum behavior for the public good is something quite distinct from a body of individuals selecting representatives to stand in for them in the operation of a state apparatus directly responsive to their desires. As a consequence, the object of voting loses its connection with the forms and objects of regulation. The populace votes for people and sometimes for regulation, but it hardly ever votes in a way that effectively connects with governance or regulators in meaningful ways that speak to accountability. "The real role of accountability in a modern state must be sought within the complex structure of the administrative hierarchies that constitute our basic mechanism for governing ourselves. Accountability is one means by which superiors control subordinates." Edward Rubin, "The Myth on Non-Bureaucratic Accountability and the Anti-Administrative Impulse," in Public Accountability: Designs, Dilemmas and Experiences 52, 75 (Michael W. Dowdle, ed., Cambridge: Cambridge University Prtess, 2006) (earlier version published as Edward Rubin, Michigan Law Review Vol. 103, No. 8, 2005 pp. 2073-2136) (Summary HERE).
For the academic, this shifting reality produces a challenge and a contradiction that one sees performed in the scholarly literature with some frequency. On the one hand, it is possible to continue to base analysis on the traditional framework. That requires efforts focused on expanding the voting franchise and investing voting with substantial governance effects--substantial because our traditional ideology requires this effect. On the other hand, it is possible to see the entire enterprise of voting as theater--the way Americans were once taught to interpret the voting of individuals in Soviet dominated regimes. Yet it is also possible to see in voting the emergence of a more complex relationship between people, elected officials and the administrative apparatus that is charged with their collective management. Voting, in this view, is disconnected with accountability but voting does serve as an assessment technique for calculating the effects of management itself. The Europeans, for example, trained the Irish to vote for Lisbon, a sign of successful management of opinion to acceptance of a host of administrative governance regimes that would be impossible to weigh and measure or to reduce to an essence suitable for casting a vote that in the aggregate represented--by voting for the Lisbon Treaty--an acceptance of all of that bundle of governance or a rejection of that. Voting provides an assurance to administrative officials that a population, subject to administrative disciplines, is either accepting or resisting disciplinary approaches or techniques. The results of elections may produce information that aids the administrative state in its business of management. And most important, it preserves that connection with traditional relationship of power--between people and government--that provide the layer of legitimacy necessary for the continued growth of its project.
But perhaps more important, voting has become an important method of management. In this case management made necessary by the power of mass democracy as the foundation of legitimate constitutional societies in the early 21st century. Just as the fan clubs organized around the races in the Hippodrome in late Roman Byzantium provided a means of organizing and managing popular opinion and connecting that opinion to governmental programs, so voting now, and the campaigns constructed around them serve a similar purpose with similar effect. My focusing popular attention on the vote, people may be diverted from the actual business of government, provide valuable information about their mood, and create a context in which popular opinion and passion may be molded. Social harmony is maintained and the legitimacy of the state is enhanced.
It is to be hoped that in the future, academics and others will begin to study voting shorn of its ideological basis in ancient ideals of Western democratic governance, or even in governance tied to ideas of representation. Voting may be moving more from expressions of delegation of authority, to the choices of focus groups in preferences for alternatives. Or it might be useful especially when it signals a significant break with the bundles of prior administrative governance or governance framework (for example in Myanmar). Yet to tie voting solely to democratic constitutionalism is to ignore what may be the most interesting uses for voting as governance progresses from its 18th century forms to those more amenable to the age of economic globalization, one where states share authority with other non-governmental functionally differentiated governance entities, where law has devolved to management, where command has been replaced by assessment and where social deviance and programs of reformation have come to describe the faces of power.