The Electoral Connection: How the Pivotal Judge Affects Oppositional Success at European Constitutional Courts

Constitutional courts are often considered to be ‘veto players’ or ‘third chambers of parliament’. However, no attention has been paid to the composition of European constitutional courts and how they make decisions. Do European judges exhibit political preferences as their US counterparts do? If so, it is important to know who selects the judges as the selection determines the outcome. This article analyses the composition of the German Bundesverfassungsgericht and the French Conseil constitutionnel. It tests the correlation between the party affiliation of the pivotal judge and oppositional success empirically for all abstract reviews filed between 1974 and 2002. In both countries the likelihood of an oppositional victory or defeat varies with the ideological position of the pivotal judge. This leads to the conclusion that European judges decide on the basis of their political preferences like their US counterparts.     

Constitutional courts as veto players: Lessons from the United States,France and Germany

The number of constitutional courts and supreme courts with constitutional review rights has strongly increased with the third wave of democratisation across the world as an important element of the new constitutionalism. These courts play an important role in day‐to‐day politics as they can nullify acts of parliament and thus prevent or reverse a change in the status quo. In macro‐concepts of comparative politics, their role is unclear. Either they are integrated as counter‐majoritarian institutional features of a political system or they are entirely ignored: some authors do not discuss their potential impact at all, while others dismiss them because they believe their preferences as veto players are entirely absorbed by other actors in the political system. However, we know little about the conditions and variables that determine them as being counter‐majoritarian or veto players. This article employs the concept of Tsebelis’ veto player theory to analyse the question. It focuses on the spatial configuration of veto players in the legislative process and then adds the court as an additional player to find out if it is absorbed in the pareto‐efficient set of the existing players or not. A court which is absorbed by other veto players should not in theory veto new legislation. It is argued in this article that courts are conditional veto players. Their veto is dependent on three variables: the ideological composition of the court; the pattern of government control; and the legislative procedures. To empirically support the analysis, data from the United States, France and Germany from 1974 to 2009 is used. This case selection increases variance with regard to system types and court types. The main finding is that courts are not always absorbed as veto players: during the period of analysis, absorption varies between 11 and 71 per cent in the three systems. Furthermore, the pattern of absorption is specific in each country due to government control, court majority and legislative procedure. Therefore, it can be concluded that they are conditional veto players. The findings have at least two implications. First, constitutional courts and supreme courts with judicial review rights should be systematically included in veto player analysis of political systems and not left aside. Any concept ignoring such courts may lead to invalid results, and any concept that counts such courts merely as an institutional feature may lead to distorted results that over‐ or under‐estimate their impact. Second, the findings also have implications for the study of judicial politics. The main bulk of literature in this area is concerned with auto‐limitation, the so‐called ‘self‐restraint’ of the government to avoid defeat at the court. This auto‐limitation, however, should only occur if a court is not absorbed. However, vetoes observed when the court is absorbed might be explained by strategic behaviour among judges engaging in selective defection.     

When does the multiple principals hypothesis hold? The politics of U.S. agency policymaking autonomy

When the bureaucracy's political principals hold different preferences for policy, does this increase the bureaucracy's policymaking autonomy? Existing theory strongly suggests “yes.” We, however, argue that this pattern will materialize only when the bureaucracy's principals are all on the same side of the political divide. (i.e., unified government). Using data gathered from the American states at two time points, we capture preference divergence by measuring the ideological distance between the bureaucracy's key political principals—legislators, governors, and courts—on the common left–right dimension. We measure policymaking autonomy through multi-faceted surveys of state agency leaders. In keeping with our argument, we demonstrate that greater preference divergence across the bureaucracy's principals is associated with increased agency policymaking autonomy under unified—but not under divided—government. The results shed new light on when, and why, the bureaucracy's political principals may provide an oversight check on the policymaking power of the modern administrative state.     

Assessing the Responsiveness of Spanish Policymakers to the Priorities of their Citizens

This article analyses how well Spanish political elites have responded to the issues signalled as priorities preferred by Spanish citizens from the early 1990s to the present, and to what extent the degree of correspondence between citizens' and policymakers' priorities is related to elections, type of government, issue jurisdiction and institutional friction. To measure this the authors rely on Most Important Problem surveys and several databases on laws, bills, oral questions and annual speeches, coded according to the comparative agendas project. They argue that the prioritisation of issues by political elites better matches public preferences at the agenda-setting stage than at the decision-making stage, and that correspondence of public and policymakers' priorities is inversely related to institutional friction. The evidence also illustrates that policymakers are more responsive to public priorities on those issues without shared jurisdiction, when the executive governs without a majority and immediately after elections.     

Ideological Competition and Conflict in the Judicial Hierarchy

Circuit splits, or conflicting rules across multiple U.S. Courts of Appeals, have important policy implications and dramatic effects on Supreme Court case selection, yet we know little about the incentives ideological lower courts face when deciding whether to initiate conflict. This article develops a formal model of a judicial hierarchy where lower court judges are subject to review by a high court with distaste for unresolved conflict, termed “split-intolerance,” and with uncertain preferences over policy. Lower courts may compete by investing costly effort in legal quality to make their rules more attractive. In equilibrium, lower courts may initiate conflict even when the odds of success before the high court are remote. Surprisingly, lower courts grow more likely to create conflict as the high court's split-intolerance increases; however, split-intolerance can also incentivize greater lower court effort. I present qualitative evidence illustrating the model's explanatory power.     

Symposium comment: On the new politics of public policy

The process is not the problem, the problem is the problem. Rudolph Penner (1984). …We argue the superiority of the outcome from the process, not of the process from the outcome. The constancy of the economist's objection to this conclusion when applied to governmental rather than market decisions simply often reflects the fact that, while some economists are not disturbed that consumer preferences lead to allocation policies other than best respond to their own tastes, when political preferences lead to governmental policies not consistent with his informed and considered preferences, they are tempted to attribute irrationality to government.     

Representation as a median mandate: Taking cross‐national differences seriously

The extent and ways in which popular preferences influence government policy are absolutely central to our understanding of modern democracy. Paul Warwick's discussion of these in the European Journal of Political Research in 2010 puts itself at the heart of the debate with its critique of the median mandate theory of McDonald and Budge, proposing an alternative ‘bilateralist’ concept of representation. This article questions whether this concept has much to add to our theoretical understanding of representational processes. However, Warwick's further conceptual points deserve serious consideration. These concern the time horizons within which representative processes work, and the status of the median position given multi‐motivated voting. At the evidential level, Warwick argues that survey‐based measures of voter and party left–right positions fail to produce the correspondence between median and government policy positions that median mandate theory would have us expect. However, survey‐based measures of median voter and party placements obscure important cross‐national variation. Using the Comparative Study of Electoral Systems ( CSES 2007 ), as Warwick does, this article shows that survey respondents norm their own and their country's party positions to their national context. The consequence is to make the political centre in all nations appear similar. Allowing for the relevant cross‐national differences brings the relationship between the median voter and government position back in line with expectations.     

The psychological roots of populist voting: Evidence from the United States,the Netherlands and Germany

What are the psychological roots of support for populist parties or outfits such as the Tea Party, the Dutch Party for Freedom or Germany's Left Party? Populist parties have as a common denominator that they employ an anti‐establishment message, which they combine with some ‘host’ ideology. Building on the congruency model of political preference, it is to be expected that a voter's personality should match with the message and position of his or her party. This article theorises that a low score on the personality trait Agreeableness matches the anti‐establishment message and should predict voting for populist parties. Evidence is found for this hypothesis in the United States, the Netherlands and Germany. The relationship between low Agreeableness and voting for populist parties is robust, controlling for other personality traits, authoritarianism, sociodemographic characteristics and ideology. Thus, explanations of the success of populism should take personality traits into account.     

How and when do presidents influence the duration of coalition bargaining in semi‐presidential systems?

How and when do presidents influence the government formation process in semi‐presidential systems? Presidents have both a formal role and vested interest in the formation of the cabinet, yet their influence has been overlooked in studies of the duration of government formation. In this article, it is argued that the president's influence over government formation can be explained by his or her perceived legitimacy to act in the bargaining process and their partisanship. In this first case, it is argued that the legitimacy to act derives from a president's constitutional powers and more powerful presidents simplify cabinet bargaining, leading to shorter government formation periods. In the second case, it is proposed that presidents and their parties have overlapping preferences. Therefore, when the president's party holds greater bargaining power in government formation negotiations, the bargaining process is less uncertain and less complex. Thus, government formation processes will be shorter. Using survival models and data from 26 European democracies, both propositions are confirmed by the analysis. The results enhance our understanding of the dynamics of cabinet bargaining processes and contribute to the wider study of semi‐presidentialism and executive‐legislative relations. One broader implication of these results is that the president's party affiliation is an important motivation for them as political actors; this contrasts with some previous studies which conceive of presidents as non‐partisan actors.     

Bringing accountability for results to government in British Columbia

In British Columbia, Canada, an initiative is underway to introduce results-focused accountability reporting for government ministries and Crown corporations. This significant change is coming about through a unique collaboration of government, the Legislative Assembly, and the Office of the Auditor General of British Columbia. This article describes: the background leading to the initiative; the conceptual framework, including the areas of government covered by the initiative and the methods of accountability reporting; the issues around implementation of results-focused government, including education and cultural change at administrative and political levels; and the success of the initiative to date. While the real success of this initiative will only be evident in a few years' time, the coming together of many parts of government to develop a common vision of what government should look like, and the development of a better understanding by all the parties to this process of one another's position and priorities, are already paying dividends.     

The Government Deference Dimension of Judicial Decision Making: Evidence from the Supreme Court of Norway

Past research has revealed conflicting findings regarding the degree to which judges on European apex courts enact their policy preferences or instead disagree on the basis of divergent legal views. We investigate disagreement between judges on the Norwegian Supreme Court between 1996 and 2016. During this period, the court dealt with a greater volume of policy-relevant cases than previously. The method of appointment to the court was also changed to a judicial appointments commission. We analyse non-unanimous cases using item response theory models. We find that judges are not divided along left–right lines but instead disagree about the appropriate degree of deference to give to public authorities. There is no significant association between the appointing government and judges' ideal points either before or after the reform to appointments. Judges who were formerly academics are however much less deferential than career judges or judges who were previously lawyers in private practice.     

State Government Expenditure Determinants and Tax Revenue Determinants Revisited

The primary aim of the research was to test the general hypothesis that many institutional and political variables affect fiscal outcomes; that the preferences of public officials, and the decision processes used to act on those preferences, matter. State government data (state only, not state and local) from 1980, 1985, and 1990 were used to specify state tax revenue and expenditure models. A previous (Merrifield, 1991) state tax revenue model identified many significant institutional and political variables, but it was based only on 1985 data (49 observations). The larger data set (147 observations), including better data for some of the variables, indicated that most of Merrifield's (1991) findings are robust. The state expenditure models facilitated a second test of the general institutional and political variable hypothesis, as well as the hypotheses about specific variables. The expenditure model also facilitated comparisons of expenditure and tax determinants, and comparisons with results published in the literature. Though there are some noteworthy differences between the expenditure and tax models, the expenditure models also supported many of the institutional and political variable hypotheses.     

When good news is scarce and bad news is good: Government responsibilities and opposition possibilities in political agenda‐setting

Recent studies have drawn attention to the political contingencies of the media's political agenda‐setting influence, finding, for instance, that issues from the media agenda are more likely to attract attention if a party enjoys ownership of the issue. Supplementing the debate on why political parties respond to news, it is argued in this article that ownership is only part of the picture and that policy responsibility, together with news tone, constitutes a stronger explanation of news politicisation. Opposition parties respond to bad news because they reflect negative developments in social problems for which the government could be held responsible. The government responds to good news that reflects positive developments in social problems because this could politicise policy success, but is also forced to react when news explicitly address government responsibility and thereby threatens its image as responsive and competent. Furthermore, it is shown that news tone and policy responsibility condition the incentive to politicise owned issues from the media agenda. Thus, opposition parties will not politicise owned issues when news is good because this could draw attention to government success, while government is unable and unwilling to prioritise owned issues when news is bad and instead is likely to make use of its ownership strengths when news is good and the pressure to respond is low. The arguments are tested on a large‐N sample of radio news stories from Denmark (2003–2004). Opposition response is measured through parliamentary questions spurred by the news stories, while government response is indicated by references to these stories in the prime minister's weekly press meeting. Results confirm the expectations, suggesting that parties care more about the tone of news stories and the type of attention they might produce, rather than what type of issues they could serve to politicise.     

Churches as Societal Veto Players: Religious Influence in Actor-Centred Theories of Policy-Making

The article argues that the study of western democracies benefits from a conceptualisation of Christian churches as societal veto players characterised by three features: their power, which depends on their potential for mobilisation; their preferences, which can be deduced from churches' official statements and which are often outside the political spectrum; and their coherence, which determines the size of their indifference curve. Conceptualised as societal veto players, churches can be included in actor-centred theories of policy-making. Particular attention should be paid to veto points, church–state relations and religious parties, as these are the features of the political system that affect churches' behaviours. A comparative study of churches' roles in stem-cell policies illustrates the use of the concept. The study shows that the Catholic Church is a ‘stronger’ veto player than protestant churches, but that this stronger role can have paradoxical effects on the resulting policies and the policy process.     

Wire-Walking: Risk Management and Policy Experiments in China from a Comparative Perspective

Abstract

Policy scientists have long examined how policy innovation has emerged and diffused by focusing on the interaction between agents and policy programs. In contrast, this article focuses on how uncertainty in policy environments has affected the fate of policy innovation in an authoritarian state. Using original data from China’s official newspaper, the People’s Daily,it is found that the central government’s decision to promote sensitive policy experiments is a function of the perceived risks in the policy environment. The U-shaped relationship between the promotion of sensitive policy innovation and inflation reflects the wire-walking behavior of China’s central government. The central authority in China tends to promote fewer sensitive political experiments when inflation increases and resumes promoting experiments when the inflation rate passes a certain tipping point. It is also found that the central authority intentionally regulates the promotion of political experiments during important political events.     

Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre- and post-Kelo

A controversial U.S. Supreme Court decision in Kelo v. City of New London (2005) which did not limit the use of state's eminent domain powers, led to an unprecedented legislative reaction by almost all 50 states. Of all, New York State stands out as one of the single states not to respond with a legislative amendment. In this study, I ask whether the state's predation was greater in the years following these legal and political developments, in light of the freedom which was granted to local politicians by both the Supreme Court and the state's legislators. The article hypothesizes that contrary to common perceptions, judicial decisions impact local government actions even when no limits on the use of powers are being posed. I use rigorous statistics and scrupulously defined data to expand scholarly understanding of the aftermath of the judicial decision in Kelo. The main finding is that the decision has in fact affected political behavior, but in the opposite direction than commonly expected: politicians in New York City acted consistently with public opinion, which was hostile too Kelo, not by changing the law, but by changing their practice. Studying all known taking exercises in New York City between 1991 and 2019, the paper finds no increase in the number of development projects involving condemnations after 2005. In fact, the probability of a taking for economic development or urban renewal dropped by 90%. The use of eminent domain for such projects declined even when both state and federal courts refrain from interposing any actual limit on its use. The paper lends qualified support to an alternative assertion that takings decisions by government officials are largely shaped by planning and political needs and that officials are sensitive to revealed public preferences even when there is no constitutional or legal impediment on their exercise of power.     

Competing for father's love? The politics of central government agency termination in China

It is well known that public agencies are nearly immortal, but what explains their termination? This article argues that apart from conventional antecedents, political salience defined by top leaders largely shapes government agencies' life cycle. In one of the first large‐N analyses of agency termination in a non‐Western authoritarian regime, we used longitudinal data for the central apparatus in China from 1949 to 1976 to test this hypothesis. We specifically used Chairman Mao's written directives to measure political salience and found that agencies that received more directives were less likely to be terminated. In contrast, agencies less attended to the boss were less likely to survive major restructurings. We also found that peripheral agencies (e.g., smaller, lower‐ranking agencies with noncore functions) benefited more from leaders' attention. We compare the results with the existing literature and suggest some theoretical and policy implications.     

The Three As of Government Formation: Appointment,Allocation, and Assignment

How does the Prime Minister organize her government so that she can implement her policy agenda? In our model, a Prime Minister appoints individuals to her cabinet, allocates their portfolios, and assigns their policy tasks—that is, she decides the relevant jurisdiction of departments and the type of proposals a minister can make. Upon appointment, ministers obtain expertise on policies specific to their jurisdiction and strategically communicate this information to the Prime Minister before a policy is implemented. Assignment allows the Prime Minister to implement her agenda even when she is constrained to appoint ministers whose policy preferences are far from her own. A Prime Minister weakly prefers a diverse cabinet. In equilibrium, the Prime Minister is indifferent between delegating policy or implementing policy herself.     

Coercion,Information, and the Success of Sanction Threats

This article explores when and why sanction threats succeed in extracting concessions from the targeted country. We focus on two different, albeit not mutually exclusive, mechanisms that can explain the success of sanction threats. The first mechanism relates to incomplete information regarding the sanctioner's determination to impose sanctions and suggests that threats help to extract concessions by revealing the sanctioner's resolve. The second mechanism underscores the direct impact of common interest between the two countries and explains the success of sanction threats by the targeted country's greater dependence on this link between the two countries and the sanctioner's ability to exploit this dependence. We test the hypotheses using a new strategic structural estimator. Our results provide no evidence in favor of the informational hypothesis, while lending robust support for the coercive hypothesis.