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What To Do With Utah’s Caucus System?

I held off for as long as I could, folks.   Really.  I’ll try to be intelligent about this, I promise.

What to do with Utah’s caucus system?

Get rid of it altogether?  Reform it?  Create an alternate path such as Count My Vote?  There are certainly lots of suggestions out there.  And whether you’re a member of the Utah Republican Party State Central Committee, a Republican, a Democrat, or an Independent, chances are that you’re going to be asked to weigh in on the issue soon (even if only through signature gathering).

So, if you haven’t already done so, it’s time to ask yourself (before your overly inundated with all the rhetoric)– what to do?

Before we get too fired up about all changing it or keeping it, we should stop and ask ourselves, “just what is it that we’re trying to accomplish, here”?  After all, look before you leap, and all that, right?

So, in the spirit of true altruism, let me set out three principles that I think should guide your consideration of the issue.  And then, in the spirit of the truly self-absorbed blogger, let me offer you my unsolicited opinion on the application of those principles. :)

PART 1: Some Guiding Principles.

First, the (hopefully) helpful part.

Principle #1:  The caucus system should be regarded and evaluated for what it actually is, which is a means of selecting party candidates for general elections, and not as a political strategy tool for undermining Tea Party Crazies or The Establishment.

Principle #2:  The caucus system shouldn’t be changed or maintained in response to any political result.  Regardless of what you think of Mike Lee and Bob Bennett, the result of the 2010 Utah Senatorial election shouldn’t continue to determine Utah’s candidate selection process.

Principle #3:  The candidate selection process has obvious real world consequences with respect to voter participation and engagement, candidate access to political office, campaign strategy and issue presentation, and even freedom of association (poor Utah Democrats . . . they’re caught in the crossfire yet again).  Changes to the candidate selection process should be made such that the chosen system aligns with individual priorities on these issues.

So, when you’re thinking about what you want to do with the caucus system, I encourage you to think about proposed alternatives not in terms of Grassroots v. Party Elite, or Tea Party v. Establishment, but in terms of what you prioritize in a candidate selection system and whether the caucus system (or the proposed reforms) aligns with what you think is important.

PART 2: My Opinion.

Now, without further ado, let me offer you one well-considered (I think, anyway!) opinion. :)

I think a candidate selection system should, first and foremost, encourage voter participation and engagement and provide each voter a meaningful opportunity to weigh in with respect to candidate selection.  I think it should ensure that a meaningful opportunity to seek public office is available to all willing to work hard and serve.  I think it should foster rather than discourage accountability of an elected official to the people within his or her electoral district.  I think, as a general matter, it should result in the selection of a candidate whose views are consistent with the majority of party members within his or her district.  The system should, where possible, be dictated internally by the party rather than imposed from the outside.  Getting the “best candidates” isn’t something that’s on my list — because it’s impossible to determine and is a convenient excuse for undermining the prior priorities.

My one or two regular readers know that I haven’t been shy about criticizing what I see as the problems with the caucus system for selecting party candidates.  But those same people know that my stance has moderated recently in light of the 2012 caucuses — due in no small measure to the effort the state parties (especially the GOP) put into education and getting people out in 2012.

So, while I’m not the pure opponent of the caucus system that I have previously been, I’m still an advocate for reform.

Here’s why.

And let me say, before I begin, that I’m under no illusion that there’s a perfect system for selecting candidates.  There’s good and bad to any system.

Pros and Cons.

Here’s what the caucus system does well:

(1)  It provides nearly unparalleled access to office for political candidates who are willing to work hard and connect with delegates.  How does it do this?  In two ways.  First, by shrinking the constituency so that candidates don’t need money or widespread name recognition to reach voters.  Second, by dangling a low 60 percent primary avoidance threshold in front of candidates.  Thus, instead of a new candidate having to convince, say, 18,000 voters house district voters in a primary election, under the caucus system a candidate need only convince 50 or so delegates (60 percent of 80 delegates) whose names, addresses, and telephone numbers are provided to the candidate by the state party free of charge.  If they do that, they don’t face a primary.  The only necessary investments to avoid a primary are a website, lots and lots of time, and a few dozen yard signs for the state convention booth.  That’s a big win for challengers, and it really sets Utah apart.

(2) It does a good job of focusing campaigns on issues.  If you’ve ever been in a meeting between candidates and delegates, you know that the delegates will grill the candidates on significant issues.  There is hardly a candidate in Utah who skates through convention on the basis of a smile and radio spots without being challenged on the issues.  That’s a positive thing, even if only a few people ever get to hear the issues discussed.

And here’s what it doesn’t do well:

(1)  It marginalizes non-delegate voters.  There are about 600,000 registered Republicans in Utah.  There are approximately 4,000 state delegates.  In many instances, the Republican candidate for the general election is being chosen by 2,400 (60%) of those delegates, which is .4 percent of the registered Republicans in the the state (or, if you prefer .8 percent of a majority of the registered Republicans in Utah).  And we all know that Democrats do not win statewide general elections.  The role of the average voter is limited to voting once every two years on a caucus night they might not be able to attend due to entirely legitimate reasons . . . such as staffing a hospital, or a fire station, responding to a work emergency, or tending to sick children.  Yes, the can always contact their representative, but the whole idea of democracy — and even a Republic, for that matter, my Utah friends — is that a person will have a chance to weigh in directly at some point prior to when a matter is a foregone conclusion.

(2)  It defines constituencies in ways inconsistent with political responsibility.  Under the caucus system, especially in a dominant party state, delegates become the constituency of the candidates.  They are, in a meaningful sense, the only people to whom the candidates are responsible.  And so political accountability becomes ever less coextensive with political responsibility.  An elected official is responsible for representing all the voters — Republican, Democrat, and Independent — in his or her electoral district.  But under the caucus system, the candidate is only meaningfully accountable to a handful of delegates.  While it’s true that, especially in every “safe” electoral district, a candidate is only politically accountable to 50-60 percent of the voters, the caucus system makes matters worse by orders of magnitude.  It is too often the case in Utah where an elected official is punished (or is worried about being punished) for actually representing the views of a majority of his or her voting constituents.  This turns the concept of accountability on its head.

(3)  It is too focused on avoiding primary elections.  As currently constituted, Utah’s caucus system might also be referred to as the “primary avoidance system.”  Supporters of the caucus system don’t like political primaries.  And who can blame them?  They’re expensive, issue-light affairs that often devolve into attack ads and embarrass party members.  But too much focus on avoiding primaries only exacerbates the caucus system’s problems with respect to voter engagement and accountability — and, importantly, puts up barriers to meaningful reform.  After all, even a modest change from the 60 percent threshold is rejected out of hand because it would result in a number of more primaries each year.  Even efforts to increase voter participation at caucus night are viewed with skepticism because they almost certainly would make primaries more likely.

(4)  The caucus system can be manipulated by money, and in a more potentially disquieting way.  We have learned during the last 3 years is that the Utah’s caucus system can be manipulated by anyone — the monied old guard as well as young, poorly-financed up and comer.  Just as Mike Lee “gamed” the caucus system by drumming up grass roots delegate support prior to caucus night, Orrin Hatch “gamed” the system by putting in place an impressive (and impressively well-financed) long game strategy of his own the minute he observed Bennett’s fate.  And, folks, there’s no denying it — that a major reason Orrin was able to “game” the system the way he did was because he had tons of cash to spend to pay staffers to recruit and train delegates.  And make no mistake, Mike Lee is raising money right now to pursue a Hatch strategy on caucus night 2016.  If this now becomes the norm, we might well ask ourselves whether we’ve substituted the sound bytes and attack ads of a primary election for something that might seem uncomfortably close to a (relatively benign) form of machine politics . . . .

Some closing observations.

(1) I’d like to see the system reformed.  Although I was once leaning toward abandoning the system in favor of a direct primary, I no longer feel that way.  I would like to see the system persist, with reform.  The caucus system as currently constituted is a bad fit for a dominant party state like Utah, but it could be made better.  Specifically, I would like to see the primary threshold raised to 70 percent.  I would like to see permanent efforts to encouraging participation on caucus night, perhaps by allowing for other means of voting and/or attendance.  And I would like to see real efforts made by the party to help the delegates understand their obligation to be accountable to their neighbors and to keep them informed.  The party should give delegates contact information for their neighbors so that they can send emails.  They should encourage communication.  They should discipline delegates who abuse the privilege by campaigning.  A reformed caucus system would focus on encouraging voter turnout and participation, while still providing meaningful opportunities to candidates of all types without punishing elected officials for representing their constituents.

(2) I’m not a fan of the Count My Vote proposal.  To me it seems to be about specific candidates and not about the principles that should drive our candidate selection system.  The Count My Vote proposal is designed to prevent another incumbent from being “Bennetted,” at convention by giving someone with money to spend and name recognition a way to get on the ballot after failing in convention.  While I suppose it technically expands voter choice, it really just expands candidate options

(3) Reform or Be Reformed.  But if the Utah Republican Party won’t undertake reforms on its own, it will be stuck with something like Count My Vote.  Delegates are not doing themselves or the caucus system any favors by refusing to consider reforms and making things personal with The Establishment.  Delegates may want to reconsider their tendency to dismissively refer to opponents of the caucus as “party elites.”  This is, after all, supremely ironic since these delegates are the very definition of Utah’s political elite who have (generally) thus far steadfastly resisted any effort to diminish their sway of Utah politics.

My sense is that both caucus reform and more party diversity are coming to Utah.  They could and should go really well together.  But if the Utah GOP continues to resist reform, I’m afraid we’ll be left with a much less desirable alternative.


Two Cheers for Law School — Theory v. Practice, Personal Experience, and Some Other Random Thoughts

It’s not unusual to see a major newspaper article discussing the many failings of law schools.  They appear every couple months or so.  These days, most of what you read is about how law schools manipulate salary and rankings data to encourage students to enroll and take on the massive debt necessary to graduate.  And what’s the reward at the end of 3 years?  You’ve got an awfully lot of heavily indebted people working 20 hours per week as contract attorneys paid $25 – $30/hour.  We get it, it’s a racket.  Poor Loyola2L.

But yesterday, the New York Times ran an article with a little bit of a different take on the law school experience, which got me thinking again about some things that occasionally cross my mind — though usually not for long (I’ve given myself way too much to do).  The article was titled, “What They Don’t Teach Law Students:  Lawyering.”  Here’s a quote that captures the essence of the article:

“Law school has a kind of intellectual inferiority complex, and it’s built into the idea of law school itself,” says W. Bradley Wendel of the Cornell University Law School, a professor who has written about landing a law school teaching job. “People who teach at law school are part of a profession and part of a university. So we’re always worried that other parts of the academy are going to look down on us and say: ‘You’re just a trade school, like those schools that advertise on late-night TV. You don’t write dissertations. You don’t write articles that nobody reads.’ And the response of law school professors is to say: ‘That’s not true. We do all of that. We’re scholars, just like you.’ ”

This trade-school anxiety can be traced back to the mid-19th century, when legal training was mostly technical and often taught in rented rooms that were unattached to institutions of higher education.

A lawyer named Christopher Langdell changed that when he was appointed dean of the Harvard Law School in 1870 and began to rebrand legal education. Mr. Langdell introduced “case method,” which is the short answer to the question “What does law school teach you if not how to be a lawyer?” This approach cultivates a student’s capacity to reason and all but ignores the particulars of practice. Consider, for instance, Contracts, a first-year staple. It is one of many that originated in the Langdell era and endures today. In it, students will typically encounter such classics as Hadley v. Baxendale, an 1854 dispute about financial damages caused by the late delivery of a crankshaft to a British miller.

. . .

Defenders of the status quo say that law school is the wrong place to teach legal practice because law is divided into countless niches and that mastering any of them can take years. This sort of instruction, they say, can be taught only in the context of an apprenticeship. And if newcomers in medicine, finance and other fields are trained, in large part, by their employers, why shouldn’t the same be true in law? (emphasis added)

I want to take a minute and explain to you why, despite its many faults, I still give at least two cheers for law school.

My Personal Journey to and Through Law School

There are two types of students who enter law school.  Those who have wanted to be lawyers all their life, and those who kind of just fall into it because they don’t know what else to do with their life.  I’m a proud member of the second group.

I have no other lawyers in my family.  Prior to enrolling in law school, I had never encoutered the legal system, even in the most indirect way.  I think I’d received one traffic ticket, for doing 8 miles over (going downhill) in northern Montana.  I’d never encountered the world of pop culture law via the legal drama (outside of watching old Perry Mason re-runs with my parents).

I made the decision to enter law school on a whim in November 2004, three weeks before the last qualifying LSAT test on a night I happened to be particularly disenchanted with my life as a doctoral student studying Political Geography at the University of Iowa.  At the time, I had two reasons for choosing law school over a Ph.D in political science (my second contemplated career alternative):  (1) no dissertation was required to obtain a doctoral degree from a law school; and (2) my LDS Bishop, who I greatly admired, was a Dean at the University of Iowa Law School.  As time went on, I manufactured more (as so many of us do).

Seven years later, here I am — a profoundly different person and mostly happy for my ill-considered choice.

I came out of law school thinking differently than I did when I went in.  I learned to appreciate the significance of fine distinctions.  I respond much more favorably to some technical arguments, because I realize that there can be substance behind those technicalities.  I also learned to reject technical arguments when they’re rooted in nothing more than technicalities.  I’m more cautious about what I say and how I say it.  I write more clearly and speak more persuasively (at least I think I do).  I have an insider’s understanding about a legal system that is so terrifying to so many.  And I really can help people through difficult times.

But I’ll also admit that it hasn’t been all good.  I’m much more cynical than I used to be.  Always at bit pessimistic by nature, I’ve become even more so.  I’m more critical of positions and can be downright dismissive of what I see as poorly articulated arguments.  I still don’t know when to use “who” and when to use “whom.”  I sometimes think in legalese.  I often feel I have little in common with people who are not lawyers.  Some days it seems like I’m constantly tempted to point out faults and tear people down.  And I can persuasively rationalize being used as a tool by someone who I think isn’t on the right side of a fight.

All this to say that law school is every bit the transformative experience it’s made out to be.  Or, it certainly was in my case.  It’s a transformation that I’m not sure you would completely undergo if you just jumped right into a legal apprenticeship and started to practice law.

Teaching Students to Think Like Lawyers Should

In other words, I’m one that thinks there really is something to this “law school is to teach you to think like a lawyer” stuff.  Or, maybe I should rephrase it.  Perhaps law school is about learning to think like a lawyer should.

When you strip away everything else, the question this New York Times article raises is whether there’s really a place for law school at all.  If budding attorneys can’t effectively be taught to practice law while in law school, do they really need a mandatory three years of school to be taught how to reason a certain way?

Well, maybe not three years; perhaps just two.  And a bit more practical instruction probably wouldn’t hurt.  Law school CSOs could *definitely* be more helpful in helping students find meaningful employment.  Law firms could improve the whole process by making hiring decisions on more than first semester grades.  Maybe law reviews could actually publish articles that are helpful to members of the bar.  And occasionally law schools might, with subtlety, suggest that these days it’s statutes and regulations, and not case law, that, by and large, rules the legal world.

But all these legitimate complaints aside, I still give a hearty two cheers for law school.  People need advice from attorneys who can relate to them but who have a perspective and view that makes it so they don’t think like them.  The law itself needs attorneys who think and care deeply about the direction it’s moving, independent of the particular case(s) at hand.  Having attorneys with perspective on how the law’s treatment of legal problems has evolved over the past 200, 500, or even 1,000, years gives depth to the law and helps attorneys understand the significance of even the most individualized and unique case.  Those years spent in law school should be about more than just learning how to draft a complaint, write discovery requests, and conduct an intake interview.  Law school should be more than a trade school; it should be about preparing young attorneys with the tools to make their practice about more than just the money and endless drudgery, but also about making the law and the legal system better.

It’s significant to note that, 150 years ago, before the ascension of law schools, the American legal landscape was ruled by the common law, which was then largely a collection of hyper-technical requirements and “gotcha” procedural rules, the knowledge of which was passed down from master to apprentice practitioners.  That’s not where we are anymore.  And I can’t help but think that theoretical law school education played just a little part in the direction we’ve gone.  I’ll cheer for that.


Increasing Use of Dictionaries in Courtrooms Causing Concern

Uh oh, I argue an appeal tomorrow and rely quite heavily on dictionary definitions :)