Ask the author: The imperial presidency and the Supreme Court

This week in North Philly Notes, we re-post Ronald Collins’ interview with Kimberley Fletcher, author of The Collision of Political and Legal Time, that appeared on the SCOTUSBlog on October 18. 

Welcome, Kimberley, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your book.

Question: Can you explain why you selected the title you did?

Fletcher: Thanks to you and SCOTUSblog for this wonderful opportunity to talk about my new book, and for your insightful questions.

I wanted a title that clearly reflected how I understand the growth of executive power and authority in foreign policy-making over developmental time. Many attribute the growth of presidential powers in this area to an aggrandizement of authority by the executive, the acquiescence of Congress and the state’s capacity to act under exigent circumstances. And the role of the courts has simply been to sanction this accumulation of power. However, this perspective overlooks the Supreme Court’s institutional positioning to redefine the scope and breadth of presidential powers vis-à-vis Congress. As political questions are transformed into legal disputes, the court can give meaning to values that have profound political consequences (including regime-building). Courts are therefore primed to institute change.

Question: You are a political scientist. Political scientists like the late C. Herman Pritchett (1907-1995) and others bring their own views into the mix of constitutional law in the area of presidential power. Generally speaking, in what ways might your view and that of your fellow political scientists differ from that of lawyers and law professors?

Fletcher: As a political scientist I seek to move beyond tracing how legal doctrine has changed, to include an evaluation of how various forces (both internal and external to the Supreme Court) have been instrumental in shaping constitutional law over developmental time. Specifically, the focus of my research is the intersection of legal studies (examining how law shapes and is shaped by political, economic and cultural forces) and American political development (focusing on the causes and consequences of major transformative periods in American political history). This intersection of law and politics allows for a clearer understanding of how presidential prerogatives in international affairs have been transformed by the courts over developmental time.

Question: You divide executive power in foreign affairs into two basic categories: the pre-1936 view and the post-1936 view. First, tell us a little bit about the pre-1936 view.

Fletcher: It is well documented that as orthodox republicans, the Framers inherited a well-established fear that the greatest danger to liberty lurked in the unchecked ambitions of the executive. Because of their deeply held fear of unilateral presidential power, the Framers embraced the principle of collective decision-making, the belief that the combined wisdom of legislatures is superior to that of a single executive. And the court’s early jurisprudence (pre-1936) reasserted these principles when it decided, in a variety of cases, the dual nature of collective decision-making between the president and Congress (Bas v. Tingy (1800), Little v. Barreme (1804), and the Prize Cases (1863)). The court left little doubt about the limited scope of the executive’s war power as the lion’s share rested with Congress.

Question: Now, please explain the post-1936 view.

Fletcher: The post-1936 view represents a sharp departure from early constitutional foreign affairs jurisprudence. Nineteenth-century deference to Congress in foreign affairs gave way in the 20th century to a distinct judicial conjecture favoring unilateral executive power in international relations. The court in the 1936 case United States v. Curtiss-Wright Export Corp. instituted a new constitutional order, for the first time establishing plenary powers that were not dependent on congressional delegation. The court reasoned that although the Constitution does not explicitly vest in the president the authority to conduct foreign policy, it gives that authority implicitly through the commander-in-chief clause. Although Justice George Sutherland, majority opinion writer, misappropriated Chief Justice John Marshall’s 1800 sole-organ speech and inflated presidential prerogatives, courts, in a series of cases (Japanese internment, Dames & Moore v. Regan (1981) and Regan v. Wald (1984)), have entrenched this new constitutional order, which in turn has institutionalized presidential ascendency.

Ultimately, the Supreme Court, over developmental time, has delineated the constitutional and political space that has allowed presidents to have the authority and the legislature to have the power to cooperate in a way that meets the practical realities of handling the ever-intensifying realm of international relations.

Question: As a historical matter, how does the Supreme Court’s 7-1 ruling in United States v. Curtiss-Wright Export Corp. in 1936 square with the originalism of Justices Antonin Scalia and Clarence Thomas?

Fletcher: Scalia was a staunch originalist and Thomas comes close to this view. And Justices Neil Gorsuch and Brett Kavanaugh (identified as “stalwart originalists”) also follow in this tradition. Originalists maintain that the Constitution is an enduring document and major changes need to be done through the democratic process.

Question: In several important respects, Presidents Barack Obama, George W. Bush and Bill Clinton followed in the power-aggrandizing footsteps of President Franklin Roosevelt when it came to their authority over wars and foreign affairs. Given that, and the virtual abdication of oversight power by Congress, how realistic is it to think the federal courts have any role to play here?

That is, when one combines the enormous powers conceded to the president in cases such as Curtiss-Wright, United States v. Belmont (1937), United States v. Pink (1942), Dames & Moore v. Regan(1981), Regan v. Wald (1984) and Zivotofsky v. Kerry (2015), it seems that the limits the Supreme Court placed on such powers in a handful of detainee cases (e.g., Hamdan v. Rumsfeld (2006) and Boumediene v. Bush (2008)) are paltry by comparison. What is your sense of that?

Fletcher: The federal courts have a sizeable role to play. I believe it is less about the courts ceding power and more to do with the courts advancing and redefining presidential prerogatives.

Yes, Obama, Bush II and Clinton all followed in the power-aggrandizing footsteps of FDR, but it was the Curtiss–Wright court that provided the legal jurisprudence to successive courts and the executive branch to proceed in this vein. While subsequent courts have further empowered the executive to conduct foreign affairs, it is the Supreme Court that remains institutionally positioned to provide any limits to that power. As I show in chapter six of my book, when Bush II challenged the institutional integrity of the court to review presidential actions, the court took umbrage in the detainee cases. When the court is challenged on its supremacy over constitutional interpretation, it confronts the primary commitments of the majority coalition and (re)establishes its institutional legitimacy. So Hamdan and Boumediene both remind presidents that when they challenge the role of the court, it will push back, and it will redefine the scope of executive authority if needed. These cases also show that when both institutions (executive and legislative) violate constitutional guarantees, the court will not approve of such action. With that said, even though the court rebuked presidential prerogatives, these decisions did not adequately address the core war-making powers of the president.

Question: You discuss executive powers in the context of “pragmatic realities.” You note that “exceptional times demand exceptional measures.” In our post-9/11 terrorist world buffeted by cyber terrorism, are not all times “exceptional” ones? After all, if the terrorist threat is constant, do not “pragmatic realities” dictate “exceptional” latitude when it comes to executive powers in this realm?

Fletcher: That has certainly been the claim: In a post-9/11 terrorist world where the terrorist threat is constant, we should afford exceptional latitude to the executive branch to keep our nation safe. Although this argument has enjoyed widespread support, I would ask at what cost? As I argue in the book, it is the court’s responsibility to determine when heightened national security demands the restriction of rights. And the court strikes this balance by evaluating external factors in line with internal norms (see 1952’s Youngstown Sheet & Tube Co. v. Sawyer and the detainee cases). The executive’s claims to unrestrained power and authority during exceptional times are then bounded by the court’s determination of those claims.

Kimberley Fletcher

Question: In a recent essay in the New York Review of Books, Jonathan Stevenson wrote: “Over the past forty-five years, the effective scope of the [War Powers Act] has remained more or less the same. Hawks don’t want to press federal courts to clarify how widely it applies for fear of a ruling that would restrict executive power. Doves are afraid the courts will expand it. The courts themselves are wary, too. They tend to regard disputes between the White House and Congress about the applicability of the act as political questions inappropriate for judicial review.” If so, where does this leave Article III courts and especially the Supreme Court?

Fletcher: First, speaking to the War Powers Resolution of 1973. This act represented an abject surrender of the war power. Ultimately, Congress cannot delegate to another branch the constitutional power to decide war. Statutes, such as WPR, that intend to limit executive authority by requiring legislative oversight have been interpreted in ways that permit substantial presidential autonomy. For example, Clinton was quite aggressive in his use of military force without congressional approval by relying on executive orders and loopholes of the WPR – skirting around the strict reporting requirements by filing separate reports to Congress that regenerated the “sixty-to-ninety-day clock.”

Second, when courts invoke the political question doctrine they abdicate their constitutional obligation to review cases and controversies. That leaves us waiting for the issue to be resolved by the political branches, and, as we know, Congress is unlikely to challenge the executive directly. And, even when legislative members have brought a suit (1979’s Goldwater v. Carter and 2002’s Kucinich v. Bush) the courts have sidestepped the issue, punting it back to the political branches. Consequently, the executive branch continues to circumvent the democratic process as it forges ahead with its foreign policy agenda.

Question: 1984’s Regan v. Wald, concerning the Treasury regulation that barred travel to Cuba, was a 5-4 decision. In his dissent, Justice Harry Blackmun made a strong case that Congress intended to bar the president from expanding the exercise of emergency authority under Section 5(b) of the Trading With the Enemy Act.

Was this a case of the Supreme Court exercising its supremacy in matters of presidential power in foreign affairs, or was it an example of the court yielding to presidential supremacy?

Fletcher: As I discuss in my book (chapter five), this is a clear case in which the court was flexing its institutional muscle.

Dames (1981) and Regan (1984) were decided when the U.S. was involved in the Cold War and the political pressures placed on the administration necessitated a number of wide-ranging policies. Under these circumstances, the court contended that the executive had a significant role in the conduct of the nation’s foreign policy as the president attempted to contain the spread of communism. The court in both cases, re-engineering authority, clearly asserted its prowess in settling which branch and by what measure foreign policy was conducted.

By re-examining Regan in line with Dames, I show the extent to which the court deliberately shifted authority from Congress to the president by finding exceptions to justify and sanction the executive’s broad discretionary authority. For example, the Regan court determined that congressional silence and practice implicitly delegated to the executive the emergency authority to restrict travel unilaterally.

Question: The ability of federal courts to review the president’s powers in the domain of international affairs depends on the existence of a concrete case or controversy under Article III. Absent some concrete injury to a particular person or class of persons, who would have standing to contest the scope of presidential power? See Campbell v. Clinton (D.C. Cir., 2000) (holding that 31 House members lacked standing to contest Clinton’s conduct of the Kosovo war). How much do Article III constraints on litigants limit the Supreme Court’s ability to check presidential power?

Fletcher: To your first question. Courts have noted that to assert an institutional injury the chamber, as an institution (and not a few disgruntled legislators), must show it has been injured. The courts have a mixed history on this issue. For example, in 1939’s Coleman v. Miller the court granted standing to 21 Kansas senators because the court found that the senators represented the Senate’s institutional position. But in other instances, 2000’s Campbell v. Clinton and 2002’s Kucinich, courts have dismissed cases because of a lack of standing; a few legislators cannot represent the entire chamber. It is my sense that over time these cases have become more about challenging executive action as an institution, which in turn would require the congressional chamber to be represented in the case as a collective body and not as a few legislators.

To your second question. It is less about whether Article III constrains the court and more a question of the court claiming that Article III constrains it. By that I mean the court can conveniently determine when Article III constrains its decision-making. It is my view that in many of these cases the court could decide on the merits. A clear instance would be whether the president has the authority to unilaterally terminate a treaty (Kucinich 2002).

Question: You quote Norman Dorsen for the proposition that “national security has been a graveyard for civil liberties for much of our recent history.” It seems that the court’s 2010 ruling in Holder v. Humanitarian Law Project (upholding a material-support-to-foreign-terrorist-organizations restriction in context of political speech) confirms that. Once any administration invokes the “national security” mantra, isn’t that really the end of the matter when it comes to any meaningful check on that power by way of judicial review?

Fletcher: National security concerns have been expanded to include just about anything, from immigrants, refugees and separating children from migrant parents, to importing steel and aluminum. And once national security is invoked it appears as though that it is the end of the matter, as the administration cannot be challenged. But this rhetoric is a public and legal justification for policies that appear, at times, to have little association between the issue presented and viable threats to the nation. So, the courts can play an important role to determine when these claims are valid. In fact, the U.S. Freedom of Information Act permits courts to review whether national security information is properly exempt from disclosure, but it requires an active judiciary to check unjustified national security secrecy. The Supreme Court can thereby strike a necessary balance and serve as a meaningful check just as I show in several chapters of my book.

I would also add that it is incumbent upon us all — general public, media, Congress and elites — to keep our government accountable when it invokes the national security mantra.

Question: Which of the justices in the current five-member conservative bloc do you think might vote to rein in executive power in the foreign affairs area?

Fletcher: I don’t believe the court will really rein in executive power in foreign affairs unless the court’s institutional authority to review such actions is called into question (see detainee cases). Moreover, as recently as 2015 the court in Zivotofsky v. Kerry entertained no direct challenge to the executive’s claim of presidential prerogatives. Yes, the court appeared to have jettisoned the sole-organ doctrine, but the court in a very significant way, in a number of passages, continued to advance plenary and exclusive presidential powers.

In terms of the conservative bloc, Kavanaugh’s confirmation places him alongside Alito and Gorsuch, with Thomas farthest to the right and Chief Justice John Roberts situated more toward the middle. With this alignment it is hard to imagine this bloc limiting the executive’s authority, but there is always room for renegotiating the extent of presidential prerogatives statutorily. Thomas, for example, remains steadfast in supporting presidential prerogatives: The court should not “second-guess” the decisions of the executive branch (Hamdi (2004)). And Kavanaugh’s paper trail suggests he is not only sympathetic to the office of the president (in matters involving civil suits, criminal investigations or criminal prosecutions), but also that he has a robust view of executive power in the area of national security. For example, Kavanaugh went out of his way in Klayman v. Obama to argue that the metadata-collection program did not necessitate warrants because the executive had ordered the program to combat terrorism.

However, if assessments are correct and Roberts does move to the left (as we saw with his vote to uphold the constitutionality of the Affordable Care Act), then perhaps he might be the one justice to sway the balance. But that is hard to imagine given Roberts’ 2008 dissenting opinion in Boumediene. Here Roberts stated the government had devised a deliberate and careful system of procedures for those detained in the ongoing military conflict.

Question: Executive power extends beyond the particular actions of a sitting president. For example, to an unprecedented degree the Trump administration has left many foreign-policy posts unfilled. The result has been to shrink the State Department. In an interview aired on Fox News, President Donald Trump stated: “Let me tell you, the one that matters is me. … I’m the only one that matters, because when it comes to it, that’s what the policy is going to be. You’ve seen that, you’ve seen it strongly.” Assuming, hypothetically, that practice of leaving vacancies unfilled continued for whatever reasons, what role, if any, does that leave the Supreme Court in shaping the extent of presidential power?

Fletcher: Great question. When State Department positions are not filled we are potentially left with incoherent policies, or policies shaped by an underrepresentation of career foreign service officers. Consequently, we are undermining U.S. diplomacy and thus jeopardizing U.S. leadership globally. Although the lack of appointments may not be disastrous, as positions are filled in an acting capacity, these acting positions are not fully empowered and cannot remain indefinitely.

Presidents, at the end of the day, have largely been determining American foreign policy (with or without State Department help), and the court has aided in shaping the extent of presidential power in this area. This is all too evident with the 2015 Zivotofsky decision: The court determined in that case that the president has the exclusive power to recognize (or not recognize) foreign nations, so the legislature may not require the State Department to indicate in passports that Jerusalem is part of Israel.

The Evangelical Crackup? The Future of the Evangelical-Republican Coalition

This week in North Philly Notes, we re-post an blog entry by Paul Djupe and Ryan Claassen, co-editors of The Evangelical Crackup?, from the blog Religion in Politics.

For academics who study American religion and politics, there has been no greater gift than the 2016 election. Rarely do we get the chance to see the strands pulled apart to reveal the true connections, but the conventional wisdom-breaking campaign of Donald Trump helped us bring some questions into sharper focus. In this post, we’d like to recap a few of the most interesting observations, from some of the top scholars working in (American) religion and politics today, from the volume we edited.

Honestly, we did not foresee that we would produce quite this book. The “?” in the title came later. If everything we thought we knew materialized, evangelicals might have taken a principled stand in rejection of the Republican nominee and his morally-challenged character. Instead, as the venerable scholar of evangelical politics, Clyde Wilcox, posted on Facebook (to the effect of), “I’ve been studying evangelicals for 30 years and don’t know them anymore.” That is a crackup in itself, but it is not the one we thought we would be writing about. Let’s turn to the top 11.

1. Evangelicals were on their own in the 2016 elections.

One of the most startling realizations of 2016 was that white evangelicals were willing to so warmly embrace a candidate with such a character deficit and dubious religious bona fides. One possible explanation is that white evangelicals were essentially left to their own devices, which Djupe and Calfano explore in Chapter 1. White evangelicals did not know many #NeverTrump evangelical leaders. Their clergy were not speaking out in large numbers and when they did they were perceived as Trump supporters. And evangelicals’ perceptions of elites were strongly colored by their immediate surroundings. The signs point to religious abdication in the 2016 election.

2. Evangelicals’ presence in the GOP activist ranks continues to grow.

Since the 1970s, religiously involved evangelicals have tripled their presence among Republican activists (at the national convention). They are the only religious group whose representation has increased markedly over time, though religiously engaged Catholics have increased their presence a bit too. So find Layman and Brockway in Chapter 2, characterizing evangelicals as the “life of the party.”

3. Evangelicals’ shift into the GOP from the 1960s on was driven by racial attitudes more than social issues like abortion.

Picking up Randall Balmer’s thread about the genesis of the Christian Right, Ryan Claassen compares the relative effects of abortion and racial attitudes on Republican voting across the critical time period of 1972 to the present. Of course support for Republicans is linked to abortion attitudes, but the shift over time would not have been so strong without racial conservatism. This provides strong evidence the engine of evangelical voting patterns is racially charged, which resonates with Balmer’s origin story of the Christian Right rooted in opposition to federal civil rights actions.

4. Republican platform language has become more religious and more strident in the last 2 decades.

Ever since the 1980 national convention, the Republican platform has called for a constitutional amendment to ban abortion. But the shift in platform language was just beginning. As Kevin den Dulk describes in “the challenge of pluralism” (Chapter 4), Republicans have increasingly employed religious language and more particularistic religious language. In the near term, the strategy to reinforce the evangelical-Republican fusion makes sense, but in the medium to long term?

5. Evangelical political tolerance levels have been increasing as their minority status and educational attainment grow.

Even for their most disliked groups, like atheists and gay Americans, evangelicals have grown steadily more tolerant of their basic rights to participate in society. There’s a wonderful tension here between Andrew Lewis’ Chapter 5 findings and den Dulk’s Chapter 4. The explanation for the different approaches to pluralism are fairly obvious, tracking the incentives to elite party leaders versus followers, but would otherwise be out of reach if they were not side by side.

6. Young evangelicals are not much different than older ones and young evangelical liberals are in many ways dissimilar from other young liberals.

Prognosticators look to young evangelicals to ascertain the future of evangelical politics.  If the shared culture that made older evangelicals politically distinctive fails to unite young evangelicals in the same way, then the evangelical base of the Republican party may turn out to be the “house built on the sand” (Matthew 7:26).  In Chapter 8 Jeremy Castle examines young, liberal, evangelicals to see whether a crackup is underway.  He finds that, even among young evangelicals, liberal politics remain rare.  More importantly, he finds that evangelical culture continues to shape the attitudes and behavior of the liberal subculture within evangelicalism.  Accordingly, he concludes that the existence of young, liberal evangelicals does not signal that a crackup of the relationship between evangelicals and the Republican party is on the horizon.

7. Evangelical Latinos are a bridge to the Republican Party.

Latinos have shown a steady drift to the Democratic Party for decades, but the rise of evangelicalism among Latinos in and outside of the US raises questions about whether this trend will continue. It turns out, as Taylor, Gershon, and Pantoya find in Chapter 9, that Latino evangelical Protestants are distinctive – they are more Republican than other Latinos, but they are not as Republican as white evangelicals (see also Burge’s post on this question). For now, Latino evangelicals are a small portion of the population[1], but their numbers are growing – they are the group responsible for stemming the losses among the Southern Baptist Convention, for instance. It remains to be seen what the strident rhetoric and policies from Trump are doing to Latino evangelical support.

8. Evangelicals are not more insulated from disagreement than others.

Among the reasons given for why evangelicals’ politics are so distinctive is that they pray in an echo chamber – a disagreement-free zone. While it’s true that evangelicals have more church-based friends, they report disagreement in their core social networks at the same rate as other religious groups. Djupe, Neiheisel, and Sokhey find in Chapter 11 that, on average, their networks feature partisan disagreement among a quarter to a third of their discussion partners. This does not mean that they respond in the same ways to disagreement, but that question remains for another project – in fact, a related question is investigated in Chapter 12.

9. Evangelicals may have come to the Republican fold for the culture, but they stay for the economics.

McGauvran and Oldmixon dispel notions in Chapter 15 that evangelicals are not on board with free market economics of the Republican Party (putting aside Trump’s violation of that orthodoxy in terms of free trade). However, there is a good bit of nuance that is worth thinking about. Evangelicals have gained in socio-economic status in the last 40 years and income helps solidify evangelical support for conservative economic policies. Interestingly, so does more engagement in evangelical religious communities. There’s quite the research question hiding in plain sight for the researcher with congregational data.

10. Young evangelicals react more negatively to their parents than non-evangelicals.

Observers have focused a great deal of attention on young evangelicals, thinking that they cannot possibly share the same racially tinged politics as their parents and grandparents. Dan Cox, Robbie Jones and colleagues look for signs of better intergroup relations and find an interesting pattern. Young evangelicals feel less warmly toward the evangelical label when they are surrounded by fellow evangelicals in their social networks; on the other hand they embrace evangelicalism more when they do face diversity. This result does not portend a crackup within evangelicalism any time soon, though it is important to note that the analysis does not include former evangelicals – those who have left the faith tradition for whatever reason (and that list is likely to include political disagreement).

11. Evangelicals have consolidated or perhaps are demonstrating ‘ironic continuities’.

We were lucky to have Robert Wuthnow and John Green offer concluding comments on our guiding question and their conclusions do not differ except in shading. Wuthnow notes that while everything has changed since the 1980s, evangelicals have remained consistent in their Republican support. That fact pushes him to distinguish ‘political evangelicalism’ from the religious practice of ‘evangelicalism.’ Green is on the same page as far as identifying the consolidation of evangelicals at the core of the Republican Party, emphasizing their political fit and shared identity, but does not admit to sharing a sense of irony about it.

These are just a few of the nuggets that appear in The Evangelical Crackup. You can also find work on religious authority (Ryan Burge), the spread of ‘In God We Trust’ mottos (Tobin Grant and Joshua Mitchell), new measurement schemes for evangelicals (Tobin Grant and David Searcy), the distribution of the Christian Right and Left in the states (Kim Conger), in addition to a sustained treatment of Christian conservative legal organizations at the heart of so many current and enduring disputes (Dan Bennett). Djupe taught these chapters while they were in press and really enjoyed the conversation across chapters. The ability to talk about the development of the movement’s connections to the GOP and the near comprehensive examination of evangelicals across units of analysis certainly belie easy assumptions about evangelicals, but also offer a compendium of findings that should be of interest to researchers as well.

Paul A. Djupe, Denison University Political Science, is an affiliated scholar with PRRI, the series editor of Religious Engagement in Democratic Politics (Temple), and co-creator of religioninpublic.blog (see his list of posts). Further information about his work can be found at his website and on Twitter.

Ryan L. Claassen, Kent State University Political Science, is author of Godless Democrats and Pious Republicans (2015) and author and coauthor of numerous political science articles. Further information about his work can be found at his website.

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Notes

1. In the 2016 CCES, those with an Hispanic identity constitute just over 7% of the sample (4747/64600) and 570-630 of them (depending on the measurement strategy) are evangelical – 12.6% of Latinos and about 1% of the total sample.

The Utility of Women’s Caucuses in Today’s Political Climate

This week in North Philly Notes, Anna Mitchell Mahoney, author of Women Take Their Place in State Legislatures, writes about the importance of women and bipartisan caucuses.

The toxic masculinity displayed perpetually by politicians and tracked by scholars (https://www.genderwatch2018.org/) in our current political climate reminds us of the importance of formal and intentional women’s spaces. Women’s organizations inside and outside of institutions serve many purposes including strategic planning and action for policy change as well as support for women who do disproportionate amounts of household, professional, and emotional labor. My book, Women Take Their Place in State Legislatures: The Creation of Women’s Caucuses, examines under what conditions women state legislators carve out a space for themselves within legislatures where men make up three-quarters of members.

The more things change, the more they stay the same.

My research found that many of the reasons women formed caucuses in the 1970s and 1980s are very similar to the motivations of today’s women caucus entrepreneurs. The bias and exclusion women felt when they were increasing their numbers in state legislatures continued to be reported by the women legislators I interviewed between 2009-2013 when their numbers plateaued around 24%. Apart from experiences of discrimination, women also reported wanting relationships with other women who shared their experiences as a woman in politics to learn from them and feel supported. This year has seen an increase in the number of women filing to run for state legislative seats (https://www.genderwatch2018.org/). If more women enter legislatures, will they seek out women’s only spaces?

What is in it for them?

In 2016, 22 states have such organizations whose missions vary from agenda setting policy caucuses, to those who take up policies on an ad hoc basis, to those whose primary mission is social – supporting each other as women, no policy consensus necessary. These caucuses allow legislators to express certain identities, signifying themselves as experts in certain policy areas and advocates for certain constituencies. Caucuses help members build relationships and gain information useful for accomplishing their goals. These groups also provide opportunities for leadership. Other studies have shown, depending on the proportion of women in the majority party, the presence of a women’s caucus may be correlated with higher proportions of women in leadership positions, increasing their status within the institution, getting them closer to the reins of power themselves (Kanthak and Krause 2012). Savvy entrepreneurs who want to strengthen women’s caucuses use many of these arguments when trying to motivate other women to join while simultaneously refuting counterclaims that women no longer need these spaces or that bipartisan caucuses themselves are inappropriate.

What is in it for all of us?

In light of today’s hyper-partisanship, one may ask what use a bipartisan caucus is, especially if it is only social in nature. Does it really matter? If the other side is populated by traitors and extremists, why even attempt relationships? In subsequent research, my colleague Mirya Holman and I found that states with women’s caucuses (even those that were only social) had an increased co-sponsorship rate among women indicating that policy outcomes are possible – even when policy is taken explicitly off the table for the caucus. Further, during the Kavanaugh hearings, much was made of the bipartisan relationship between Senator Coons and Senator Flake.  Bipartisan, personal relationships never go out of style in legislatures – even if they are strained during hyper partisan times (Victor and Ringe 2009).

Bipartisan caucuses are one place such relationships are formed in legislatures that prioritize partisan loyalty and gender norm expectations. In addition to the benefits for participants, women’s caucuses make three significant interventions to legislative institutions. First, by creating a legislative organization that signifies gender as politically salient, women legislators are challenging the false gender neutrality of politics. In my book, I make visible male dominance within these institutions that many consider androgynous. Observers may note this advantage in the social norms of legislatures where men call out women for speaking in groups larger than pairs, where men exclude women from social gatherings where they actually make the deals, and through more formal processes where party leaders concentrate women legislators in less powerful committee appointments and exclude them from leadership positions.

Second, the establishment of women’s caucuses inside male-dominated legislative institutions can provide a safe space for marginalized legislators to support each other, as well as help develop and refine legislative initiatives. Caucuses are a way to counteract institutional norms that may require women to play a man’s game, adopt a particular political persona, or adhere to someone else’s definition of appropriate political priorities. When gender norms are challenged or broadened in a public space like legislatures, the possibilities for all women grow.

Finally, as conduits for advocacy organizations into the legislature, women’s caucuses may contribute to better representation for many different constituencies.  These potential interventions are significant and indicate the importance of these organizations beyond the adoption (or not) of women-friendly policy.

Scholars must continue to probe the value or necessity of these bipartisan organizations. One day they may no longer be necessary as women are wholly incorporated into the institutions in which they serve. However, it may be that women will always seek comradery and support from those with similar lived experiences, regardless of how far their workplaces come in accommodating their presence. For now, the symbolic importance of women’s spaces within male-dominated institutions continues to signal that women belong in office and women can work together (even if in limited ways). More tangibly, the handful of women’s caucuses that participate in recruiting and training women for campaigns hold out hope that they may have a few new members come next session.

References

Kanthak, Kristin, and George A. Krause. 2012. The Diversity Paradox: Political Parties, Legislatures, and the Organizational Foundations of Representation in America. New York: Oxford University Press.

Victor, Jennifer Nicholl and Nils Ringe. 2009. “The Social Utility of Informal Institutions: Caucuses as Networks in the 110^th U.S. House of Representatives.” American Politics Research. 37(5): 742-766.

 

 

 

University Presses Are Thriving, Not Broken

This week in North Philly Notes, we repost an article about the state of University Presses by Derek Krissoff, Director of West Virginia University Press, that appeared in Inside Higher Ed on October 2.

A casual observer might reasonably assume that university presses are in crisis, or deserve to be. Mainstream outlets routinely proclaim that “academic publishing is broken,” and the new documentary Paywall, currently making the rounds on college campuses, argues that “academic publishers are burdening the higher education market, contributing to the rising tuition fees at all universities . . . and, ultimately, limiting science and progress.”

Whether they say it or not (and Paywall, to its credit, does), these criticisms are directed at commercial publishers of expensive STEM journals rather than not-for-profit university presses, which specialize primarily in books in humanities and social science fields. Think Elsevier vs. the University of Massachusetts Press. The big critiques that make headlines and generate documentaries don’t generally mention university presses at all, leaving many to assume that they’re part of what’s depicted as the problem of rapacious scholarly publishers.

When observers do turn to university presses, the story’s often more grim than angry. Much attention is paid to threatened press closures; less to the opening of new presses or the frequent decisions to keep open presses previously slated to shut down. (How many people know that the University of Akron Press, noisily slated for closure in 2015, not only stayed open but had a finalist for the National Book Award last year?) “Several presses have closed and almost all are struggling,” intoned Richard W. Clement in 2011, distilling a gloomy timbre that persists in many assessments of the industry.

Variously erased, posited as a problem to be solved, and assumed to be dinosaurs on their way out, university presses are in fact, in their low-key fashion, thriving. There are more of them than ever before, and they’re doing better: sales in the industry were up 5 percent last year. That growth isn’t, moreover, coming from cash-strapped libraries. Only 20 to 25 percent of university press sales are to libraries (down from 70 percent forty years ago), and at the University of California, to pick one example, only 7 percent of library budget goes to books of any kind.

As anger spreads over libraries being squeezed by STEM journals from large for-profits, university presses are growing in part by looking beyond a narrow focus on library markets and publishing for new audiences, branching out into crossover titles, supplemental texts, regional books, popular reference works, manifestos, graphic novels, and the like. It’s an entrepreneurial flourishing that engages new readers, creates new communities, and extends the reputation of those universities fortunate enough to have presses.

At the same time, widespread predictions that university presses might abandon less profitable fields and undermine the career prospects of junior scholars seem not to have panned out: 83 percent of scholarly monographs find a publisher. Presses may be publishing new sorts of books, but not at the expense of traditional ones.

Technology, meanwhile, hasn’t changed things the way its most confident champions (some of whom predicted a shift to primarily online publishing) believed to be inevitable. At most university presses 85 to 90 percent of sales continue to come from print. While ebooks aren’t the gamechanger some technophiles expected, a different shift—the ability to print books digitally—has made a huge difference, enabling presses to do small print runs responsibly. When I started in publishing twenty years ago I was told a new book required an initial print run of at least 2,000 copies to be viable. Now we can do just a few books at a time, if necessary, making it easier to continue the mission-driven publishing at our core, even when audiences are specialized.

The growth of virtual spaces for publicizing books and building communities around publishing programs has been the other seismic change made possible by the digital turn. But the results of online marketing often show up in print sales and IRL interactions (think: nicely publicized bookstore events) rather than digital downloads.

So what about open access for books? The approach has promise, particularly for some specialized titles that don’t reward the high-investment model of conventional publishing. But OA publishing costs money, just like conventional publishing—money that comes from somewhere even if it isn’t the customer. Simply changing who pays for publishing isn’t necessarily progressive and can exacerbate or reinscribe inequalities. For example, plans to have authors’ universities cover the costs of publication ($35,000 per book, according to a study from Ithaka) may limit the pool of potential authors to those employed by wealthier institutions. Limitations like these may help account for the fact that only 1 percent of new scholarly books in English are published open access.

Saying that university presses are resilient, and that their recent history is characterized by continuity more than disruption, isn’t meant to suggest they’re static. University presses have always experimented, and they’ll continue to do so; they face challenges and, like the rest of the university, respond creatively. But university presses are best positioned to make the most of current prospects if they’re seen as valuable, not broken—if proposed changes are understood as having the potential to ensure a range of complementary publishing options, including the surprisingly durable model of traditional publishing.

Derek Krissoff (@DerekKrissoff) is director at West Virginia University Press, the only university press, and largest book publisher of any kind, in West Virginia.