What if Europe held an election and no one cared?

Harvard International Law Journal

Volumn 52, Issue 1, 2011, Pages 109-161

  Schleicher, David ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 79955830901     PISSN: 00178063     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (418)

1. See, e.g., Markéta Hulpachová, Voters Still Unclear on EU Issues, PRAGUE POST, June 3, 2009, at 1 (describing election campaigns);
2. Alain Lamassoure, Continuation of the European Adventure Relies on Ireland, IRISH TIMES, Dec. 10, 2008, at 18 (describing doubt about the future of EU reforms following Irish rejection of the Treaty of Lisbon);
3. Martin Wolf, This Crisis is a Moment, but is it a Defining One?, FIN. TIMES, May 19, 2009, available at http://www.fullermoney.com/content/2009-05-20/ FT-ThisCrisisIsA-MomentButIsItADefiningOne20May09.pdf ("Europe... is not having a good crisis.").
4. Total turnout was forty-three percent, far lower than the turnout for domestic elections, and a number that overstates actual interest since it includes turnout numbers from countries where voting is mandatory.
5. See, e.g., David Charter & Rory Watson, European Elections: Extremist and Fringe Parties are the Big Winners, TIMES (U. K.), June 8, 2009, available at http://www.timesonline.co.uk/tol/news/politics/elections/article6452090.ece http: (discussing turnout);
6. Jonathan Eyal, EU Parliament on Fringe of Lunacy; Newly Elected Rightist and Extremist Parties Have Little Clout but Could Undermine Unity, STRAITS TIMES (Sing.), June 14, 2009 (describing success of xenophobic, nationalist, and odd parties like the Pirate Party of Sweden);
7. Swing Low, Swing Right; The European Elections, ECONOMIST, June 13, 2009 (discussing turnout and results) [hereinafter Swing Low, Swing Right];
8. Trouble at the Polls; The Worrying European Elections, ECONOMIST, June 13, 2009 (highlighting the success of xenophobic, nationalist, and odd parties like the Pirate Party of Sweden).
9. A model created by three leading European political scientists using national party preferences as its central variable predicted ninety percent of the seats won in the 2009 elections. Simon Hix, Michael Marsh & Nick Vivyan, Burson-Marsteller, Predict '09, June 8, 2009, http://www.webarchive.org.uk/ wayback/archive/20090609081906/predict09.eu/default/en-us.aspx. Following the first EP election in 1980, Karlheinz Reif and Hermann Schmitt first diagnosed EP elections as "second-order elections, " or elections with results determined entirely by national party popularity.
10. See Karlheinz Reif & Hermann Schmitt, Nine Second-Order Nation Elections-A Conceptual Framework for the Analysis of European Election Results, 8 EUR. J. POL. RESEARCH 3, 8(1980).
11. This result has held up in studies of each EP election since 1979.
12. See SIMON HIX, WHAT'S WRONG WITH THE EUROPEAN UNION & HOW TO FIX ITc 80-84 (2008) [hereinafter HIX, WHAT'S WRONG];
13. Michael Marsh, Testing the Second-Order Election Model After Four European Elections, 28 BRIT. J. POL. SCI. 591, 606-07 (1999).
14. See SIMON HIX, ABDUL G. NOURY & GÉRARD ROLAND, DEMOCRATIC POLITICS IN THE EUROPEAN PARLIAMENT 13(2007) [hereinafter Democratic Politics].
15. See infra notes 46-59 and accompanying text.
16. See infra note 50 and accompanying text;
17. see also Bruce Stokes, U. S. Economic Hegemony Ebbs, 40 NAT'L J. 17, 17(2008) (noting that EU formed a larger single market than the United States).
18. See Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 13, 2007, 2007, O. J. (C 306) 1 1[hereinafter Treaty of Lisbon];
19. Dan Bilefsky & Steven Castle, Way is Clear to Centralize Europe's Power, N. Y. TIMES, Nov. 3, 2009, at A6;
20. Célia Sampol, Lisbon Treaty: Lisbon Will Strengthen Parliament's Powers, EUROPOLITICS (June 29, 2009), http://www.europolitics.info/lisbon-will- strengthen-parliament-s-powers-artr241126-32.html. The analogy does not hold perfectly. First, member state governments vote directly in the Council, making state control over the Council far greater than U. S. state control over the Senate, even before the Seventeenth Amendment provided for direct elections. Second, voting is weighted by population in the Council, unlike the equal representation given to states in the U. S. Senate.
21. See Ernest A. Young, Protecting Member State Autonomy in the European Union: Some Cautionary Tales from American Federalism, 77 N. Y. U. L. REV. 1612, 1626, 1689(2002).
22. David Marquand coined the term "democratic deficit, " arguing that an elected and powerful European Parliament would be necessary if the rule requiring unanimity among democratically responsive member states in the Council were removed (as it has been). DAVID MARQUAND, PARLIAMENT FOR EUROPE 64-66 (1979). For a discussion of efforts to increase the power of the EP as a solution for the democratic deficit
23. see Peter L. Lindseth, Democratic Legitimacy and the Administrative Character of Supranationalism: The Example of the European Community, 99 COLUM. L. REV. 628, 673-74 (1999).
24. See Young, supra note 7, at 1696-97. Members of the Commission are appointed by the Council, but the governing treaty of the EU is clear that the Commissioners should function independently and without influence from member states. Consolidated Version of the Treaty of the Functioning of the European Union arts. 244-45, May 9, 2008, 2008 O. J. (C 115) 47 [hereinafter TFEU].
25. See infra notes 60-65 and accompanying text.
26. Mattias Kumm, To Be a European Citizen? The Absence of Constitutional Patriotism and the Constitutional Treaty, 11 COLUM. J. EUR. L. 481, 512(2005) (citing voter turnout figures in 2004 EP elections and comparing them to previous EP election turnout and domestic turnout).
27. See supra note 3.
28. HIX, WHAT'S WRONG, supra note 3, at 79.
29. Strasbourg, France is the official seat of the European Parliament, and where plenary sessions are held. Kristin Archick & Derek E. MIX, CONG. RESEARCH SERV., RS 21998, THE EUROPEAN PARLIAMENT 8(2010).
30. The parties listed are only meant to be illustrative of the fact that domestic parties appear on the EP ballot. For a full list of parties and results in EP elections by country by year
31. see EUROPE POLITIQUE (Oct. 3, 2010), http://www.europe-politique.eu/.
32. See SIMON HIX & CHRISTOPHER LORD, POLITICAL PARTIES IN THE EUROPEAN UNION 55-90 (1997). For a full listing of how each domestic party in Europe relates to Euro-parties in the EP
33. see the European Parliament's European Election Results. Election Results: The New Parliament, EUROPEAN PARLIAMENT (July 16, 2009), http://www.europarl.europa.eu/parliament/archive/elections2009/en/index-en.html.
34. See infra notes 107-110 and accompanying text.
35. See DEMOCRATIC POLITICS, supra note 4, at 180-91.
36. See id. at 26-29;
37. see also HIX & LORD, supra note 16, at 55-90.
38. HIX, WHAT'S WRONG, supra note 3, at 52-53 (noting the collapse in support for the EU from late 1980s to mid 1990s);
39. DEMOCRATIC POLITICS, supra note 4, at 14-15 (illustrating in Table 1.1 the EP's increase of power through the introduction of the cooperation procedure in 1987, the co-decision procedure in 1993, and the reform and extension of co-decision in 1999).
40. See infra note 50 and accompanying text.
41. See infra notes 123-137 and accompanying text. Simon Hix and Andrew Moravcsik, whose work is discussed below, do not actually call for treaty amendments, but rather for changes in institutional focus by widespread elite agreement.
42. See infra notes 224-237 and accompanying text.
43. See ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY, 207-59 (1957);
44. Ilya Somin, Knowledge About Ignorance: New Directions in the Study of Political Information, 18 CRITICAL REV. 255, 260-62 (2006).
45. The "running tally" model was developed by Morris Fiorina. MORRIS FIORINA, RETROSPECTIVE VOTING IN AMERICAN ELECTIONS 65-78, 193-200 (1981). This model, and other arguments that voters use parties as shortcuts for information, have been criticized for minimizing the importance of voter ignorance. They argue that retrospective voting models fail to acknowledge that voters credit politicians for policies or events beyond their control, often do not know which party is in power, and treat party affiliation more like an ethnic or religious affiliation than one based on issues.
46. See infra notes 164 and accompanying text. as a result, critics argue that shortcuts do not allow voters to behave as if they were informed. These criticisms, however, are aimed at the argument that with political parties providing heuristics, voter behavior approaches what it would be were voters fully informed. They do not suggest that, absent political parties providing relevant heuristics, anything approaching representation of popular opinions about policies is possible.
47. See infra notes 186-188 and accompanying text.
48. See infra notes 211-213 and accompanying text.
49. The numbers here are not chosen at random-they directly mirror the standards that Euro-parties have to meet to receive funding from the EU.
50. See infra note 209 and accompanying text.
51. That these parties already exist, with legal identities, funding sources, and staff, should reduce the difficulties of establishing new international organizations.
52. See infra note 109 and accompanying text. Nothing about a distribution requirement actually necessitates substantive changes in the organization of the national political parties that join together to form the Euro-parties. Parties would only need to change the label that appears on the ballot.
53. F. Scott Fitzgerald famously noted that "the test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function. "
54. F. SCOTT FITZGERALD, THE CRACK-UP (1936), available at http://www.esquire.com/features/the-crack-up. It is thus a real question whether an ordinary electorate could hold two separate, but not opposed ideas about two separate sets of political parties. For some evidence that voters in one place can develop preferences in two different party systems
55. see infra notes 219-221 and accompanying text.
56. See David Schleicher, Why Is There No Partisan Competition in City Council Elections? The Role of Election Law, 23 J. L. & POL. 419, 437-47 (2007) [hereinafter Schleicher, City Council Elections];
57. see also infra notes 224-232.
58. For two excellent reviews of the modern field of election law
59. see Guy-Uriel E. Charles, Democracy and Distortion, 92 CORNELL L. REV. 601(2007)
60. and Guy-Uriel E. Charles, Judging the Law of Politics, 103 MICH. L. REV. 1099, 1131-40 (2005).
61. See infra notes 157-158 and accompanying text.
62. See infra notes 238-241 and accompanying text.
63. For an abbreviated history of this lurching development
64. see DAMIAN CHALMERS ET AL., EUROPEAN UNION LAW: TEXT AND MATERIALS 8-43 (2006).
65. See Hon. John P. Flaherty & Maureen E. Lally-Green, The European Union: Where is it Now, 34 DUQ. L. REV. 923, 933-36 (1996) (describing the power and make-up of the institutions of the EEC from 1958-1985).
66. Id. at 933. It should be noted that the Commission did not take its full form until 1967, although it existed in large part following the Treaty of Rome.
67. See Nicholas P. Zalany, The European Union Constitution and its Effects on Federalism in the EU, 66 OHIO ST. L. J. 615, 620(2005).
68. See Young, supra note 7, at 1628.
69. See Flaherty & Lally-Green, supra note 36, at 941-42. It is a distinct body from the Council of Europe, an entity in which heads of state from Europe meet to chart the long-run goals of the EU.
70. Id.
71. The Council voted by unanimity at the outset, but since the Single European Treaty of 1986, it has used "qualified-majority voting" on some issues, where larger states are given more votes and there is a need to get supermajorities across more than one dimension.
72. SIMON HIX, THE POLITICAL SYSTEM OF THE EUROPEAN UNION 83-89 (2d ed. 2005) [hereinafter THE POLITICAL SYSTEM]. The Council also has quasi-executive functions that fall somewhere between legislative monitoring of the executive and actual implementation of legislation. Id. at 35-38, 52-58.
73. See DEMOCRATIC POLITICS, supra note 4, at 12.
74. Treaty Establishing the European Economic Community art. 138(3), Mar. 25, 1957, 298 U. N. T. S. 11;
75. see also Flaherty & Lally-Green, supra note 36, at 941-42.
76. See DEMOCRATIC POLITICS, supra note 4, at 14.
77. Id.
78. See Flaherty & Lally-Green, supra note 36, at 941-42.
79. Single European Act art. 149(2), Nov. 10, 1987, 1987 O. J. (L 169) 1 [hereinafter Single European Act]. This gave the Parliament the power to propose amendments and to delay the passage of legislation.
80. See DEMOCRATIC POLITICS, supra note 4, at 14, 19;
81. Lindseth, supra note 8, at 673.
82. Treaty on European Union art. 189 (b), Feb. 7, 1992, O. J. (C 191). In areas covered by co-decision, all legislation must be approved by the EP as well as by the Council.
83. See Michael H. Abbey & Nicholas Bromfield, A Practitioner's Guide to the Maastricht Treaty, 15 MICH. J. INT'L L. 1329, 1350-51 (1994);
84. Note, Environmental Effects of Codecision Under the Maastricht Treaty, 21 B. C. INT'L & COMP. L. REV. 247, 252-54 (1999) [hereinafter Environmental Effects].
85. See Abbey & Bromfield, supra note 47, at 1350-51;
86. Environmental Effects, supra note 47, at 247, 252-54.
87. Under the Maastricht Treaty, the bodies were not true equals even in those areas covered by codecision. Where the EP and Council could not agree, the Council was empowered to propose a version of legislation that could not be amended by the EP-it had to vote up or down. Because the EP tended to vote yes on legislation when given this "take it or leave it" choice, its power to truly effect legislation was limited. Some argued that introducing co-decision without the power to propose amendments actually weakened the EP.
88. See, e.g., George Tsebelis, Maastricht and the Democratic Deficit, in DECISION RULES IN THE EUROPEAN UNION: A RATIONAL CHOICE PERSPECTIVE 16, 17 (P. Moser, G. Schneider & G. Kirchgaessner eds., 2000). However, in 1999, following a decision by the EP to vote no on a Councilproposed piece of legislation on voice telephony, the Amsterdam Treaty removed this structural advantage for the Council. "The Parliament is now a powerful legislator, coequal with the Council under the reformed codecision procedure."
89. George Tsebelis & Geoffrey Garrett, The Institutional Foundations of Intergovernmentalism and Supranationalism in the European Union, 55 INT'L ORG. 357, 359(2001).
90. See At a Glance: Key EU Laws, BBC NEWS (May 12, 2009, 112:04 GMT), http://news.bbc.co.uk/2/hi/europe/7959853.stm
91. See THE POLITICAL SYSTEM, supra note 40, at 41-43, 59-60. Until 1994, member states nominated the President of the Commission by unanimity, but the Council has done so by qualified majority votes since 1993.
92. Id. at 59, 61.
93. See CHALMERS et AL., supra note 35, at 116-17;
94. DEMOCRATIC POLITICS, supra note 4, at 14;
95. THE POLITICAL SYSTEM, supra note 40, at 59-60.
96. See DEMOCRATIC POLITICS, supra note 4, at 13-17.
97. See THE POLITICAL SYSTEM, supra note 40, at 60-61.
98. See David Gow, Grateful Barroso Offers MEPs a Say on EU Reform, GUARDIAN (UK), Nov. 19, 2004, at 21;
99. see also DEMOCRATIC POLITICS, supra note 4, at 1-3.
100. Treaty Establishing a Constitution for Europe art. I-19-20, Dec. 16, 2004, O. J. (C 310) [hereinafter Establishing Treaty];
101. see also Stephen C. Sieberson, The Proposed E. U. Constitution-Will it Eliminate the EU's Democratic Deficit?, 10 COLUM. J. EUR. L. 173, 208-09 (2004).
102. Treaty of Lisbon, supra note 7;
103. see also Bilefsky & Castle, supra note 7;
104. Youri Devuyst, The European Union's Institutional Balance After the Treaty of Lisbon: "Community Method" and "Democratic Deficit" Reassessed, 39 GEO. J. INT'L L. 247, 306-09 (2008) (describing power of EP after Treaty of Lisbon);
105. Valery Giscard D'Estaing, The Treaty is the Same as the Constitution, INDEPENDENT (U. K.), Oct. 30, 2007, available at http://www.independent.co.uk/ opinion/commentators/valeacutery-giscard-destaing-the-eu-treaty-isthe-same-as- the-constitution-398286.html.
106. Q&A: The Lisbon Treaty, BBC NEWS (Feb. 5, 2010, 16:47 GMT), http://news.bbc.co.uk/2hi/europe/6901353.stm.
107. Treaty of Lisbon, supra note 7 (showing that changes made are spread across many articles);
108. see also Devuyst, supra note 57, at 306-09. 60. See HIX, WHAT'S WRONG, supra note 3, at 4, 19 ("[Qualified Majority Voting] in the Council now covers all the main areas relating to the creation and reform of the internal market");
109. see also THE POLITICAL SYSTEM, supra note 40, at 67-89.
110. Lindseth, supra note 8, at 673-74.
111. MARQUAND, supra note 8, at 64-65.
112. See Young, supra note 7, at 1697 ("The primary response to concerns about a 'democratic deficit' has been a call to enhance the role of the European Parliament-the only directly elected institution in the Community system.").
113. Jean-Joseph Schwed, The Parliament and the Commission, 440 ACNNALS AM. ACAD. POL. & SOC. SCI. 33, 34(1978).
114. "The official strategy here has centered on a further increase in the role of the Community's elected body, the European Parliament-in effect, to make it the legitimate political superior in the community system. According to the European Court of Justice, the growing importance of the Parliament is an expression of 'the fundamental democratic principle that the people should take part in the exercise of power through the intermediary of a representative assembly.'"
115. Lindseth, supra note 8, at 673 (quoting Case 138/79, sa Roquette Freres v. Council, 1980 E. C. R. 3333, 3360 ¶ 33).
116. See HIX & LORD, supra note 16, at 12-16;
117. DEMOCRATIC POLITICS, supra note 4, at 51;
118. David Marquand, Towards a Europe of the Parties, 49 POL. Q. 425, 445(1978) (arguing Europe could only move beyond its present as a "Europe des patries, " in Charles de Gaulle's famous formulation, if it become a "Europe des partis.").
119. Stephen Day & Jo Shaw, Developing Political Parties in the European Union: Towards a European Party Statute?, in PARTY FUNDING AND CAMPAIGN FINANCING IN INTERNATIONAL PERSPECTIVE 293 (K. D. Ewing & Samuel Issacharoff eds., 1993).
120. See DEMOCRATIC POLITICS, supra note 4, at 51.
121. In 2004, a variety of disparate national Green parties formed the European Green Party. They did so to contest the 2004 European Parliament elections with a common platform.
122. See Peter Ford, Greens Seek Pan-European Political Clout, CHRISTIAN SCI. MONITOR, Mar. 1, 2004, at 6;
123. History, THE GREENS EUROPEAN FREE ALLIANCE IN THE EUROPEAN PARLIAMENT, http://www.greens-efa.org/cms/default/rubrik/6/6648.history.htm (last visited Oct. 2, 2010).
124. See Swing Low, Swing Right, supra note 2.
125. See HIX & LORD, supra note 16, at 15 ("national parties... monopolise the mass political arena....");
126. Michael Marsh & Mark Franklin, The Foundations: Unanswered Questions from the Study of European Elections, 1979-1994, in CHOOSING EUROPE? THE EUROPEAN ELECTORATE AND NATIONAL POLITICS IN THE FACE OF UNION 20 (Cees van der Eijk & Mark Franklin eds., 1996). There are a few exceptions to this-for instance, the Irish party Fine Gael has used its membership in the European People's Party in its campaign literature.
127. Marsh & Franklin, supra, at 20.
128. See An Unloved Parliament, ECONOMIST, May 9, 2009, at 56 ("Leaders decry the practice of packing the European Parliament with failed politicians and cronies");
129. Shaken in Strasbourg, ECONOMIST, January 16, 1999, at 18.
130. Council Decision of 25 June and 23 September 2002, 2002/772/EC, Amending the Act Concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage, Annexed to Decision 76/787/ECSC, EEC, Euratom, 2002 O. J. (L 283) 1 [hereinafter Euratom Treaty].
131. See Simon Hix, Parliamentary Behavior with Two Principals: Preferences, Parties, and Voting in the European Parliament, 46 AM. J. POL. SCI. 688, 691(2002) (national parties choose candidate lists);
132. Charlemagne, Record Abstention in Euro-elections, ECONOMIST CHARLEMAGNE'S NOTEBOOK, (June 8, 2009, 0:21), http://www.economist.com/blogs/charlemagne/ 2009/06/record-abstention-in-euroelect. cfm;
133. An Unloved Parliament, supra note 72, at 18 ("Leaders decry the practice of packing the European Parliament with failed politicians and cronies.").
134. Matthew Saltmarch, What Next for a French Meteor?, INT'L HERALD TRIB., June 11, 2009, available at http://www.nytimes.com/2009/06/11/world/europe/ 11ihtdati.html?-r=1&scp=1&sq=%22What% 20next%20for%20a%20French%20meteor%22&st=cse;
135. See An Unloved Parliament, supra note 72, at 18. A similar story can be told about former French Prime Minister Michael Rocard.
136. See Sarkozy's Moment: France's Reshuffled Government, ECONOMIST, Apr. 3, 2004 (noting that Rocard was dismissed as Prime Minister due to his unpopularity);
137. Jeffrey Ulbrich, Washed-Up Windbags, HOBART MERCURY (Austl.), Apr. 22, 1996 (noting that Rocard was only one among many "big names and fading stars" in the EP).
138. Paolo Totaro, Struggling for Poll Position, SYDNEY MORNING HERALD, June 5, 2009, available at http://www.smh.com.au/world/struggling-for-poll-position- 20090604-bx9e.html.
139. Richard Owen, Silvio Berlusconi Makes Beauty Contest of European Poll, AUSTRALIAN, Apr. 24, 2009, available at http://www.theaustralian.com.au/news/ silvio-makes-poll-beauty-contest/story-e6frg6to-1225 702973337;
140. Peter Popham, The Last Days of the Court of King Silvio, INDEPENDENT (U. K.), June 27, 2009, available at http://www.independent.co.uk/news/world/europe/ the-last-days-of-the-court-of-kingsilvio-1721558.html.
141. It is theoretically possible that the inclusion of less than serious candidates drives turnout down, rather than up. If there were gains from running ordinary politicians, however, we would expect the parties to do so in order to reap the electoral benefits. as it stands, there is little evidence that it matters at all who is on the ballot.
142. Alexander C. Pacek & Benjamin Radcliff, Voter Participation and Party-group Fortunes in European Parliament Elections, 1979-1999: A Cross-National Analysis, 56 POL. RES. Q. 91, 92(2003);
143. see also HIX, WHAT'S WRONG, supra note 3, at 80.
144. See HIX, WHAT'S WRONG, supra note 3, at 80;
145. Turnout at the European Elections, EUROPEAN ELECTIONS RESULTS 2009, http://www.europarl.europa.eu/parliament/archive/elections2009/en/turnout-en. html (last visited Oct. 1, 2010) (showing that turnout was forty-three percent).
146. Judy Demspey, For East Europeans, the E. U. Election Was a Big Yawn, INT'L HERALD TRIB., June 9, 2009, available at http://www.nytimes.com/2009/06/ 10/world/europe/10ihtvote.html?scp=1&sq=for% 20East%20Europeans, %20the%20EU%20election%20was%20a%20big%20yawn&st=cse (stating that Latvia's turnout was 30 percent higher than Lithuana's, largely because of local elections);
147. Matthew Taylor, Flying the Flag for Apathy, GUARDIAN (U. K.), June 9, 2009, available at http://www.guardian. co. uk/politics/2009/jun/08/voter- turnout-liverpool;
148. Turnout at the European Elections, supra note 80 (stating that Belgium and Luxembourg had turnout over ninety percent.)
149. See Turnout at the European Elections, supra note 80.
150. See CHALMERS, et AL., supra note 35, at 111-12.
151. European Parliament Elections, EUROPEAN PARTIES ELECTIONS AND REFERENDUMS NETWORK, SUSSEX EUROPEAN INSTITUTE, UNIVERSITY OF SUSSEX, http://www.sussex.ac. uk/sei/'-4-2-2.html (last visited Nov. 11, 2010) (listing a series of Euopean Parliament election briefings). Dan Hough, the analyst that studied the German elections, wrote: "The election held to elect 99 German representatives to the European Parliament was always likely to be hijacked by affairs specific to the national arena. European themes played, at best, an occasional role in the campaign-at worst they were completely insignificant."
152. Dan Hough, 2004 Parliament Election Briefing No. 3: The European Parliament Election in Germany, June 13, 2004, available at http://www.sussex. ac.uk/sei/documents/epernep2004germany.pdf (last visited Nov. 11, 2010). The analyst covering Poland, Aleks Szczerbiak, wrote: "European issues played a secondary role in a dull and lifeless campaign to which the main parties and media gave a very low priority and that was overshadowed by a government formation crisis and possibility of an early parliamentary election. "
153. Aleks Szczerbiak, 2004 European Parliament Election Briefing No. 1: The European Parliament Election in Poland, June 13, 2004, available at http://www.sussex.ac.uk/sei/documents/epernep2004poland.pdf (last visited Nov. 11, 2010).
154. See Nicholas Aylott & Magnus Blomgren, 2004 European Parliament Election Briefing No. 7: The European Parliament Election in Sweden, June 13 2004, available at http://www.sussex.ac.uk/sei/documents/epernep2004sweden.pdf (last visited Nov. 11, 2010);
155. Ann-Christina L. Knudsen, 2004 European Parliament Election Briefing No. 11: The European Parliament Election in Denmark, June 13 2004, available at http://www.sussex.ac.uk/sei/documents/epernep2004denmark.pdf (last visited Nov. 11, 2010);
156. Paul Taggart, 2004 European Parliament Election Briefing No. 14: The European Parliament Election in the United Kingdom, June 10 2004, available at http://www.sussex.ac.uk/sei/documents/epern-ep2004-uk.pdf (last visited Nov. 11, 2010). The studies reveal that in countries where EU issues play virtually no role, the only EU- centric content is centered around competing claims that parties can get more money from Brussels. For instance, in the largely European-issue-devoid German EP elections of 2004, the Free Democratic Party used the slogan "We can do Europe better."
157. Hough, supra note 84, at 7. The only European issue mentioned in the EP campaign in Hungary was the claim, made by all four major parties, that they would maximize transfer from Brussels to Budapest. Agnes Batory, 2004 European Parliament Election Briefing No. 8: The European Parliament Election in Hungary, June 13 2004, available at http://www.sussex.ac.uk/sei/documents/ epernep2004hungary.pdf (last visited Nov. 11, 2010). This is common throughout the reports.
158. See Robert Harmsen, 2004 European Parliament Election Election Briefing No. 17: The European Parliament Election in the Netherlands, June 10, 2004, available at http://www.sussex.ac.uk/sei/documents/epern-ep2004-netherlands.pdf (last visited Nov. 11, 2010);
159. Michael Holmes, 2004 European Parliament election Briefing No. 2: The European Parliament Election in Ireland, June 11 2004, available at http://www.sussex.ac.uk/sei/documents/epernep2004ireland.pdf (last visited Nov. 11, 2010);
160. Sally Marthaler, 2004 European Parliament Election Briefing No. 6: The European Parliament Election in France, June 13 2004, available at http://www.sussex.ac.uk/sei/documents/pernep2004france.pdf (last visited Nov. 11, 2010).
161. Ben Quinn, European Elections Pound Britain's Brown, CHRISTIAN SCI. MONITOR, June 8, 2009, at 4 (quoting a political scientist as saying "In my lifetime there has been never been an election so dominated by one issue to the of [sic] extent of the expenses issue.").
162. The New EP-National Impact, THENEWEP. EU (July 16, 2009), http://thenewep.com/nationalstate-of-play/. ("[Italy's] electoral campaign, which started quite late (at the beginning of May), did not focus on EU-related issues, but was mainly characterised by scandals, personal attacks and gossip, widely publicised by the media both at national and international level.").
163. Id. ("There was low interest in the European elections among German voters and consequently a historically low voter turnout of forty-three percent. as in the past, campaigns mostly focused on national issues and national politicians.").
164. Even in those countries where European issues did feature in the campaign, they were not decisive. For instance, in the Netherlands, where there was a great deal of pro- and anti-European rhetoric in the campaign, domestic issues determined the results nearly entirely.
165. See Stijn van Kessel, The European Parliament Election in the Netherlands, June 4 2009, available at http://www.sussex.ac.uk/sei/documents/no- 28-epern-ep09-netherlands.pdf (last visited Oct. 5, 2010). In Finland, "defending national interests" was the major theme, and in Malta, Sussex's analyst noted that it was difficult to determine what is European policy and what is domestic policy, as the two are substantially intertwined.
166. See Roderick Pace, The European Parliament Election in Malta, June 6 2009, available at http://www.sussex.ac.uk/sei/documents/no-27-epernep2009malta. pdf (last visited Oct. 5, 2010);
167. Tapio Raunio, The European Parliament Election in Finland, June 7 2009, available at http://www.sussex.ac.uk/sei/documents/epern-ep09- finland-ep.pdf (last visited Oct. 5, 2010).
168. TXHE POLITICAL SYSTEM, supra note 40, at 193-96.
169. Marsh, Testing the Second-Order Election Model After Four European Elections, supra note 3, at 606.
170. Id.; see also HIX, WHAT'S WRONG, supra note 3, at 79-80;
171. Simon Hix & Michael Marsh, Punishment or Protest? Understanding European Parliament Elections, 69(2) J. POL. 495, 495-96 (2007).
172. Archie Bland & Toby Green, How Europe Voted and What it Means, INDEPENDENT (U. K.), June 9, 2009 at 12 (crediting green party's French success to Cohn-Bendit);
173. John Lichfield, Danny the Green: Daniel Cohn-Bendit, INDEPENDENT (U. K.), June 13, 2009, at 36.
174. Marsh & Franklin, supra note 71, at 24-28.
175. Hix & Marsh, supra note 93, at 495. The best explanation for the success of small parties is that some voters feel free to cast a protest vote when there is little chance that the popular vote will affect the composition of domestic government.
176. See Erik Oppenhuis et al., The Party Context: Outcomes, in CHOOSING EUROPE? THE EUROPEAN ELECTORATE AND NATIONAL POLITICS IN THE FACE OF UNION 288-89 (Cees van der Eijk & Mark Franklin eds., 1996).
177. Burson-Marsteller, Predict '09 Methodology, June 4, 2009, http://qa.predict09.host3.crossfactory. net/default/en-us.aspx (last visited Nov. 9, 2010).
178. Id.
179. The reason the numbers are different is that there was some tradeoff. For instance, the model's prediction was low by one seat the support for the conservatives in Finland, but was high by one in Germany. Burson-Marsteller, Predict '09 Executive Summary, June 16, 2009, http://qa.predict09.host3. crossfactory.net/default/en-us.aspx.
180. See Swing Low, Swing Right, supra note 2.
181. See Ian Traynor, Defiant or in Denial? Champions of EU Progress Stopped in Their Tracks, GUARDIAN (U. K.), June 9, 2009, at 6
182. available at http://www.guardian. co.uk/world/2009/jun/08/centre- lefteuropean-elections (quoting Simon Hix as saying "The centre-right won the election, but it [their vote] did not really go up... [i]t's the centre-left that has gone down, in government or in opposition" and noting that "[w]herever the centre-left collapsed, the extreme right frequently scored its most spectacular gains-in Hungary, Austria, the Netherlands and Britain. But pro-EU left liberals and Greens also did well.");
183. see also Swing Low, Swing Right, supra note 2 ("Support for mainstream centre-right parties held steady or fell slightly.").
184. Stephen Castle, Disaffection Dominates European Voting, N. Y. TIMES, June 8, 2009, at A5, available at http://www.nytimes.com/2009/06/08/world/europe/ 08union.html;
185. Trouble at the Polls: The Worrying European Elections, ECONOMIST, June 13, 2009, available at http://www.economist.com/node/13829453?story-id=13829453. For full results by party
186. see Results of the 2009 European Elections, http://www.europarl.europa. eu/parliament/archive/elections2009/en/new-parliament-en.html (last visited Nov. 6, 2010) (listing 2009 EP election results by country by party).
187. See, e.g., Katrin Benhold & Stephen Castle, European Leaders Looking for Common Ground in an Economic Crisis, N. Y. TIMES, Nov. 25, 2008, at 7, available at http://www.nytimes.com/2008/11/2/business/worldbusiness/25euro.html (center-right leaders in France and Germany disagree on proper European response to economic crisis);
188. Arthur Sinodinos, Pragmatists the Voters' Choice, AUSTRALIAN, June 12, 2009, available at http://www.theaustralian.com.au/news/opinion/pragmatists-the- voters-choice/storyfn5r96n6-1225733474748;
189. Patrick Wintour, Brown and Sarkozy Nudge Germans Towards Fresh Economic Measures, GUARDIAN (U. K.), Dec. 9, 2008, at 11 (center-left British PM, center-right French President and center-right European Commission President all agree on stimulus but disagree with center-right German prime minister).
190. See Young, supra note 7, at 1672 (describing how EU laws "trump" domestic laws).
191. It should be noted that there is likely a substantial correlation in what voters think about domestic politics and what they think about EU politics. However, that correlation is certainly not very tight-plenty of factors affecting domestic party preferences are irrelevant to EU decisionmaking. Furthermore, the absence of campaigning on EU issues means that there is little retrospective accountability. Voters may select politicians based on preferences that correlate with their preferences on EU issues, but they do not police MEP behavior once they get to Strasbourg.
192. See supra note 90 and accompanying text.
193. See DEMOCRATIC POLITICS, supra note 4, at 21-29.
194. Id.
195. See Day & Shaw, supra note 67, at 296-97.
196. DEMOCRATIC POLITICS, supra note 4, at 23, 26;
197. Nicholas Watt & Ian Traynor, Tories Head New Rightwing Fringe Group in Europe, GUARDIAN (U. K.), June 23, 2009, at 13 (discussing new Euro-party).
198. DEMOCRATIC POLITICS, supra note 4, at 104.
199. Id. at 180-81.
200. See supra note 85 and accompanying text.
201. HIX, WHAT'S WRONG, supra note 3, at 51. There are only a few exceptions to the 1000 interviews per country rule. The EU funds 2000 interviews in Germany, 1300 in the UK, and 600 in Luxembourg.
202. See Standard Eurobarometer 70, EUROPEAN COMMISSION, http://ec.europa.eu/ public-opinion/archives/eb/eb70/eb70-en.htm (last updated June 7, 2010).
203. Comm'n of the European Communities, Standard Eurobarometer 11: Public Opinion in the European Community, at 44 (May 1979), available at http://ec.europa.eu/public-opinion/archives/eb/eb11/eb11-en.htm.
204. Comm'n of the European Communities, Standard Eurobarometer 35: Public Opinion in the European Community, at 3 (June 1991), available at http://ec.europa.eu/public-opinion/archives/eb/eb35/eb35-en.htm.
205. Standard Eurobarometer 70, supra note 114, at 31;
206. HIX, WHAT'S WRONG, supra note 3, at 52-53.
207. See, e.g., Mark Franklin & Cees van der Eijk, The Problem: Representation and Democracy in the European Union, in CHOOSING EUROPE? THE EUROPEAN ELECTORATE AND NATIONAL POLITICS IN THE FACE OF UNION, supra note 71, at 7-8.
208. In the last Standard EuroBarometer poll, fifty-one percent "tended to trust" the EP, while only forty-seven percent and forty-eight percent "tended to trust" the European Commission and the European Central Bank, respectively. Standard Eurobarometer 70, supra note 114, at 165.
209. Yves Meny, De la Democratie en Europe: Old Concepts and New Challenges, 41 J. COMMON MKT. STUD. 1, 8(2003);
210. see also Sieberson, supra note 56, at 204-05.
211. Indeed, the number of times it has been suggested that the literature on the EU and its democratic deficit is too large to summarize is itself too large to summarize. For a few examples from recent legal literature
212. see, e.g., Rachel Brewster, The Domestic Origins of International Agreements, 44 VA. J. INT'L L. 501, 543(2004) ("Such concerns about a 'democratic deficit' are commonly heard with regards to the European Union, where the power of national governments to act in numerous areas has been restricted by treaty obligations.");
213. Youri Deyvust, The European Union's Institutional Balance After the Treaty of Lisbon: "Community Method" and "Democratic Deficit" Reassessed, 39 GEO. J. INT'L L. 247, 254(2008) ("The literature from political scientists debating the existence and scope of the "democratic deficit" in the EU is rich.");
214. Daniel C. Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 YALE L. J. 1490, 1515(2006) ("The EU's democratic deficit, for example, has become a major topic of scholarly discussion and similar concerns have been focused on other supranational governance efforts.");
215. Sanford Levinson, How the United States Constitution Contributes to the Democratic Deficit in America, 55 DRAKE L. REV. 859, 860(2007) ("There are more than 500, 000 hits that come up when one uses Google to search for 'democratic deficit'-revealing that it is especially pervasive in discussions of the European Union and the general project of European integration. ");
216. Jan Muller, Carl Schmitt and the Constitution of Europe, 21 CARDOZO L. REV. 1777, 1778(2000) ("Secondly, there is the old, and, one might say, by now rather trite, issue of the 'democratic deficit.'");
217. Martin Nettesheim, Developing a Theory of Democracy for the European Union, 23 BERKELEY J. INT'L L. 358, 358(2005) ("The number of books and articles expounding upon the problem of whether or not the European Union (EU) presents a 'Democratic Deficit' and if so whether and how this may be overcome, has become nearly too numerous to count.");
218. Neil S. Siegel, International Delegations and the Values of Federalism, 71 LAW & CONTEMP. PROB. 93, 103(2008) ("This is of course familiar learning by now. Commentators have written increasingly about the 'democratic deficit' that characterizes international institutions, particularly the European Union. ").
219. See, e.g., Luciano Bardi, Parties and Party System in the European Union: National and Suprantional Dimensions, in POLITICAL PARTIES IN THE NEW EUROPE: POLITICAL AND ANALYTICAL CHALLENGES 293, 293 (Kurt Richard Luther & Ferdinand Muller-Rommel eds., 2002) (describing Hix and Moravcsik as having "revitalized the theoretical debate" about the study of democracy in the EU).
220. Andrew Moravcsik, In Defense of the 'Democratic Deficit': Reassessing Legitimacy in the European Union, 40 J. COMMON MKT. STUD. 603(2002).
221. Id. at 603.
222. Id. at 608.
223. Id. at 616. One might quibble, however, with his determination that international trade is a low-salience issue.
224. Id. at 606. The strongest EU institution, the European Central Bank, is a perfect example of his point. After all, central banks are often independent and free of any direct democratic input.
225. Id. at 612.
226. Hix developed these ideas in a series of articles as well, one of them notably written directly in response to Moravcsik's paper, as well as a recent book. See generally HIX, WHAT'S WRONG, supra note 3;
227. Andreas Follesdal & Simon Hix, Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik, 44 J. COMMON MKT. STUD. 533(2006);
228. Simon Hix, Elections, Parties and Institutional Design: A Comparative Perspective on European Union Democracy, 21 WEST EURO. POL. 19(1998);
229. Simon Hix, Parties at the European Level and the Legitimacy of EU Socio-Economic Policy, 33 J. COMMON MKT. STUD. 527(1995).
230. HIX, WHAT'S WRONG, supra note 3, at 31-49.
231. Id. at 76-86.
232. Id. at 65-66. Hix does not expressly use Albert Hirschman's terminology of exit and voice, but the idea is similar.
233. See ALBERT O. HIRSCHMAN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES 40-41 (1970).
234. HIX, WHAT'S WRONG, supra note 3, at 98-107.
235. Id. at 105.
236. Id. at 140.
237. Id. at 155-78.
238. Id. at 160.
239. Id. at 153.
240. See Marcus G. Puder, Constitutionalizing Government in the European Union: Europe's New Instituitonal Quartet Under the Treaty Establishing a Constitution for Europe, 11 COLUM. J. EUR. L. 77, 92(2004) (describing over and underrepresentation by population in the EP). Germany is particularly underrepresented by population in the EP. For instance, there is one German MEP for every 829, 000 inhabitants, while there is one MEP from Luxembourg for every 72, 000 inhabitants.
241. Id.
242. It is called Duverger's Law following the classic work of Maurice Duverger.
243. See generally MAURICE DUVERGER, POLITICAL PARTIES: THEIR ORGANIZATION AND ACTIVITY IN THE MODERN STATE (Barbara North & Robert North trans., Lund Humphries 2d ed. 1959);
244. William H. Riker, The Two-Party System and Duverger's Law: An Essay on the History of Political Science, 76 AM. POL. SCI. REV. 753, 764(1982). There is substantial debate about the degree to which Duverger's Law is deterministic, probabilistic and/or causal.
245. See William H. Riker, Duverger's Law Revisited, in ELECTORAL LAWS AND THEIR POLITICAL CONSEQUENCES 19, 19-42 (Bernard Grofman & Arend Lijphart eds., 1986). For an argument that Duverger's Law has a normative component
246. see David Schleicher, 'Politics as Markets' Reconsidered: Natural Monopolies, Competitive Democratic Philosophy and Primary Ballot Access in American Elections, 14 S. CT. ECON. REV. 163, 168-70 (2006).
247. This basic model was first developed in Schleicher, City Council Elections, supra note 31, at 422-27.
248. Id. at 428-30;
249. see also DOWNS, supra note 24, at 114-49.
250. DOWNS, supra note 24, at 139.
251. Id. at 141;
252. Schleicher, City Council Elections, supra note 31, at 429. There has been a great deal of research examining the effects of relaxing the extreme assumptions of the Downsian model.
253. DENNIS C. MUELLER, PUBLIC CHOICE II: A REVISED EDITION OF PUBLIC CHOICE 180(1989). However, the basic concept of the model-that competitive pressures cause parties to propose popular policies-remains robust.
254. See Schleicher, City Council Elections, supra note 31, at 429 n. 38.
255. DOWNS, supra note 24, at 123-27;
256. Gary W. Cox, Centripetal and Centrifugal Incentives in Electoral Systems, 34 AM. J. POL. SCI. 903, 920-22 (1990);
257. see generally DOUGLAS W. RAE, THE POLITICAL CONSEQUENCES OF ELECTORAL LAWS (2d ed. 1971).
258. Schleicher, City Council Elections, supra note 31, at 419-21.
259. Id. at 424, 457-59. Where national elections are close, so are local elections. For instance, Indianapolis is closely contested between the national political parties, with the vote for Democratic Presidential candidates rising over the last ten years. Tracking the national trend, Democratic candidates for both Mayor and City Council won for the first time since Indianapolis established its current borders.
260. Id. at 424, n. 24.
261. Id. at 437-47.
262. See infra notes 227-228 and accompanying text.
263. See Schleicher, City Council Elections, supra note 31, at 428-29. Notably, this should be true even if preferences on national issues track preferences on local issues perfectly. as long as the minority party can position itself differently in national and local races, it should compete in a Downsian framework.
264. Recently, Kristen Badal and Jessica Trounstine have found that a large number of voters split tickets between county elections and Presidential elections, with as many as thirty-five percent of counties having different parties win at the county and national level.
265. See Kristen Badal & Jessica Trounstine, Local Versus National Partisan Representation, available at http://faculty.ucmerced.edu/jtrounstine/ Local- partisanship-August09-2.pdf. Although this seems to conflict with other available data on city elections, when examined more closely, it does not. In their regression analyses, they found that counties with large populations had far less split representation than less populated counties. Increasing the population from the smallest county in their sample to the largest county decreases the probability of split representation from sixty-eight percent to eight percent.
266. Id. at 14. They also found that the percentage of residents who lived in cities, the number of councilors per 1000 persons, and the percentage of Blacks and Latinos in the population, had strongly negative effects on split representation.
267. Id. at 13, 15. That is, counties that look like big cities have little split representation, and counties that are primarily rural or suburban have much more. Their data on Mayoral voting backs this up. Although they do not analyze the data this way, this is completely consistent with an argument offered by William Fischel. Fischel argued that smaller local governments were highly responsive to the interests of "home voters, " who, due to the effect of local policies on the variation in their housing values, were extremely involved and active in local politics.
268. WILLIAM A. FISCHEL, THE HOMEVOTER HYPOTHESIS: HOW HOME VALUES INFLUENCE LOCAL GOVERNMENT TAXATION, SCHOOL FINANCE, AND LAND use POLICIES 15-16 (2001). Fischel suggests elections in localities of over 100, 000 will operate like the state or federal elections, in which individuals are largely passive actors in politics.
269. Id. at 92. City elections are, in fact, far worse, because party information does not provide voters with the same type of information that it does in federal elections, and hence blind reliance on party information does not promote representative outcomes.
270. See Schleicher, City Council Elections, supra note 31, at 445-52. Although other variables are quite important in determining where ticket splitting occurs-particularly education, wealth and local diversity-it is relatively clear that the dynamics of elections in big cities (and big urban counties) ensures that little ticket splitting occurs.
271. See Eu v. S. F. Cnty. Democratic Cent. Comm., 489 U. S. 214(1989) (holding that California could not bar political parties from making endorsements or supporting candidates in their own primaries);
272. Cal. Democratic Party v. Lungren, 919 F. Supp. 1397, 1399 (N. D. Cal. 1996) (holding that California could not bar parties from endorsing candidates in non-partisan elections);
273. Schleicher, City Council Elections, supra note 31, at 451 n. 110.
274. See, e.g., Schleicher, City Council Elections, supra note 31, at 450 n. 108.
275. See id. at 450-51.
276. There is a growing amount of evidence that party affiliation explains either little or nothing about local politicians. Fernando Ferriera and Joe Gyourko have found that the party of the winning candidate in mayoral elections does not affect the size of local government, the allocation of local spending or crime rates, in stark contrast with federal and state election results that have dramatic effects on government policies. Fernando Ferriera & Joseph Gyourko, Do Political Parties Matter? Evidence from U. S. Cities, 124 Q. J. ECON. 399(2009). Using a similar methodology, Elizabeth Gerber and Daniel Hopkins found that a mayor's party affiliation does affect spending on local police and fire fighting (Republican and independent mayors spend more than Democratic mayors) but not any other public policy variables.
277. Elizabeth Gerber & Daniel Hopkins, When Mayors Matter: Estimating the Impact of Mayoral Partisanship on City Policy, (Soc. Sci. Res. Network Working Paper Series, Sept. 28, 2010), available at http://papers.ssrn.com/sol3/papers. cfm?abstract-id=1475237. At best, political party membership tells us very little-but not nothing-about local politicians.
278. See Gerber & Hopkins, supra note 155;
279. Schleicher, City Council Elections, supra note 31, at 450-51.
280. See Schleicher, City Council Elections, supra note 31, at 447, 452-54. There is only one local third party in a major American city, the Charter Party of Cincinnati, and the reasons for its existence are somewhat anomalous.
281. Id. at 447.
282. For the classic treatment of this
283. see DOWNS, supra note 24, at 260-74.
284. Id. at 238-76;
285. see also Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 IOWA L. REV. 1287, 1325-26 (2004).
286. That voters know little about politics-little about the policies politicians enact, little about what expert opinion on policies is and is not enough about who is to blame-is perhaps the most basic finding of American political science.
287. See, e.g., ROBERT S. ERIKSON, MICHAEL B. MACKUEN & JAMES A. STIMSON, THE MACRO POLITY xvii (2002) ("This story of unmotivated, ill-informed, and inattentive voters is as old as the first examinations of individual voters, and it is confirmed anew by every subsequent voting study. Looked upon as individuals, most Americans care little about politics and possess a level of knowledge of the details of political life that is consistent with not caring.");
288. Somin, supra note 159, at 1304 ("The most important point established in some five decades of political knowledge research is that the majority of American citizens lack even basic political knowledge.").
289. See FIORINA, supra note 25, at 65-83;
290. DONALD WITTMAN, THE MYTH OF DEMOCRATIC FAILURE 10(1995) ("Voters receive a lot of 'free' information-in the news, in the mail, and in ordinary conversations.").
291. See Christopher H. Achen, Parental Socialization and Rational Party Identification, 24 POL. BEHAVIOR 151, 152-54 (2002) (creating formal Fiorina-like model with Bayesian updating).
292. Fiorina, supra note 25, at 198-200 ("... our analysis supports the view of the voter as a relatively rational fellow....");
293. see also ERICKSON, MACKUEN & STIMSON, supra note 160, at 119-35 (arguing that party identification, which is developed in a number of ways, can lead to macro-politically rational behavior);
294. Achen, supra note 162, at 165-67 (noting that Bayesian models can explain group behavior even if they are not particularly believable with respect to individuals).
295. See, e.g., DONALD GREEN, BRADLEY PALMQUIST & ERIC SHICKLER, PARTISAN HEARTS AND MINDS 8-14, 89-139 (2002) (arguing that party identification is primarily social and evidence of macroresponsiveness of voting to events is flawed.);
296. Larry Bartels, Beyond the Running Tally: Partisan Bias in Political Perceptions, 24 POL. BEHAVIOR 117, 120(2002) (stating that Democrats and Republicans understand political phenomena differently, biasing running tally decisionmaking);
297. Somin, supra note 159, at 1325-28 (stating that retrospective voting models are flawed because of lack of voter knowledge about whom to blame for policy failures);
298. Ilya Somin & Neal Devins, Can We Make the Constitution More Democratic?, 55 DRAKE L. REV. 971(2007);
299. Justin Wolfers, Are Voters Rational? Evidence From Gubernatorial Elections (Jan. 30, 2007), http://bpp. wharton. upenn.edu/jwolfers/Papers/ Voterrationality (latest).pdf (arguing that voters are only partially capable of sorting out responsibility for causes of economic growth).
300. See, e.g., Somin & Devins, supra note 164, at 979 ("Shortcuts can sometimes partially alleviate the problem of rational ignorance. But they are not a complete solution for it....").
301. Further, the development of such long-term associations inhibits the ability of local-only third party entrants. If voters make associations on the basis of retrospective evaluation, new entrants without a record will face an uphill climb.
302. See Jurij Toplak, European Parliament Elections and the Uniform Election Procedure, 15-16, http://www.enelsyn. gr/papers/w3/Paper%20by%20Jurij%20Toplak. pdf (last visited Nov. 20, 2010).
303. See Ernest A. Chaples, Developments in Australian Election Finance, in COMPARATIVE POLITICAL FINANCE AMONG THE DEMOCRACIES 29-40 (Herbert E. Alexander & Rei Shiratori eds., 1994);
304. Pilar del Castillo, Problems in Spanish Party Financing, in COMPARATIVE POLITICAL FINANCE AMONG THE DEMOCRACIES, supra, at 97-104;
305. Gullan M. Gidlund, Regulation of Party Finance in Sweden, in COMPARATIVE POLITICAL FINANCE AMONG THE DEMOCRACIES, supra, at 105-14;
306. Ruud A. Koole, Dutch Political Parties: Money and the Message, in COMPARATIVE POLITICAL FINANCE AMONG THE DEMOCRACIES, supra, at 115-31;
307. Christine Landfried, Political Finance in West Germany, in COMPARATIVE POLITICAL FINANCE AMONG THE DEMOCRACIES, supra, at 133-44.
308. Compare Results of the 2009 European Elections, supra note 102 (listing 2009 EP election results by country by party)
309. with PARTIES AND ELECTIONS IN EUROPE, http://www.parties-and-elections. de/countries.html (last visited Nov. 6, 2010) (showing last parliamentary election results in each European country).
310. These strategic concerns also likely affect local elections in the United States. Political parties may be afraid to take stances on local issues for fear of harming the national coalition. For instance, taking a stance on some controversial education issues (e.g., the teaching of creationism) might cause harm to unity inside major political parties that otherwise would not have had to take a stance on these issues.
311. Oppenhuis et al., supra note 96, at 288-89. This explains a major difference between EP elections and big city local elections. In local elections, most candidates talk about local policies, even if national politics is going to dominate voter decisionmaking. In EP elections, parties do not mention European issues, and the difference is due to the respective candidates' desire. Local politicians-particularly given the candidate-centric nature of campaigns in the United States-want to take credit for a local mandate, as it will give them power in a local legislature. EP campaigns are waged by national parties, and they want credit for a national political mandate.
312. See id. at 290-95.
313. See Mark Franklin & John Curtice, Britain: Opening Pandora's Box, in CHOOSING EUROPE? THE EUROPEAN ELECTORATE AND NATIONAL POLITICS IN THE FACE OF UNION, supra note 71, at 94-95.
314. See Navraj Singh Ghaleigh, The UK's Political Parties, Elections and Referendums Act 2000, in PARTY FUNDING AND CAMPAIGN FINANCING IN COMPARATIVE PERSPECTIVE, supra note 67, at 47 (noting time limits on Britain's campaign expenditure limit).
315. See Mark Franklin et al., Conclusions: The Electoral Connection and the Democratic Deficit, in CHOOSING EUROPE? THE EUROPEAN ELECTORATE AND NATIONAL POLITICS IN THE FACE OF UNION, supra note 71, at 370-71.
316. EP elections are required to use either proportional representation or single-transferable vote, both of which create lower barriers to entry than does a first-past-the-post single-member-district system.
317. See supra note 2 and accompanying text.
318. By their very nature, small parties do not govern, in the EP or elsewhere. as the EP does not provide opportunities to govern either, voters do not have the ability to develop running tallies based on their performance.
319. "[T]he media, the public and even most domestic political elites are unaware of the new politics in Brussels. For example, few TV news editors or national MPs, let alone private citizens, realize that political parties dominate politics in the European Parliament...."
320. HIX, WHAT'S WRONG, supra note 3, at 137.
321. See, e.g., Battered Blair pushes domestic agenda, TORONTO STAR (Can.), Sep. 27, 2004, at A13;
322. John Daniszewski & Tracy Wilkinson, Anti-EU Factions Gain in Europe Polls, L. A. TIMES, June 15, 2004, at A3;
323. James Kirkup, Blair Faces His Longest Week as the Numbers Add Up Nicely for Brown, SCOTSMAN (U. K.), July 12, 2004, at 8;
324. Andrew Rawnsley, How the Bloody Anarchy of Iraq Broke the Spirit of Tony Blair, OBSERVER (U. K.), Feb. 28, 2010, at 32;
325. see also Blair's Paradox, ECONOMIST, June 17, 2004, (noting that Blair himself viewed this as the reason for Labour's poor performance in the EP elections). The EU obviously has no control over the United Kingdom's military decisions. To the extent that any EU body would have influence over this question, it would be through the Common Foreign and Security Policy, which seeks to coordinate Member State foreign policies, and the European Security and Defense Policy, neither of which the EP has any power over.
326. See Denis Chaibi, The Foreign Policy Thread in the European Labyrinth, 19 CONN. J. INT'L L. 359, 363, 374-80 (2004).
327. Even if there is a high correlation between preferences about domestic policies and EU policies- and there is likely a substantial correlation-the mismatch problem creates a lack of democratic accountability. First, there is some difference, as purely domestic events, like the UK Parliaments expense scandal, affect the results. Further, even if candidates are chosen for their preferences on certain issues, if voters use domestic and not international preferences, there is no retrospective accountability. MEPs may be selected in part based on preferences that are common across domestic and EU issues, but there is no punishment if they do not vote that way.
328. The perversion, it should be noted, is institutional, not individual. For individuals, using EU elections to comment on domestic politics is perfectly rational. But there is no reason power should be vested in the EP if its membership is chosen merely on the basis of messages voters want to send to their domestic parliaments.
329. For a brief history of this scholarship
330. see BENJAMIN REILLY, DEMOCRACY IN DIVIDED SOCIETIES: ELECTORAL ENGINEERING FOR CONFLICT MANAGEMENT 12(2001).
331. Giovanni Sartori is generally considered to have pushed the creation of this subfield.
332. See generally Giovanni Sartori, Political Development and Political Engineering, 17 Pub. Pol'y 261(1968).
333. Donald Horowitz, A Democratic South Africa? Constitutional Engineering in a Divided Society 163(1991).
334. See REILLY, supra note 183, at 12.
335. See generally AREND LIJPHART, DEMOCRACY IN PLURAL SOCIETIES (1977).
336. See id. at 25-44;
337. see also DONALD HOROWITZ, ETHNIC GROUPS IN CONFLICT 569-70 (2d ed. 1985);
338. Matthijs Bogaards, Electoral Choices for Divided Societies: Multi-Ethnic Parties and Constituency Pooling in Africa, 41(3) COMMONWEALTH & COMP. POL. 59(2003).
339. See BENJAMIN REILLY, DEMOCRACY AND DIVERSITY: POLITICAL ENGINEERING IN THE ASIA-PACIFIC 81, 88(2006).
340. See Matthijs Bogaards, The Consociational Analogy of the EU: A Rejoinder to Crepaz with a Comment on Kaiser, 3 EURO. UNION. POL. 501(2002).
341. See supra notes 123-128 and accompanying text.
342. See HIX, WHAT'S WRONG, supra note 3, at 138-45.
343. REILLY, supra note 188, at 81.
344. See HOROWITZ, supra note 184, at 172-74.
345. See REILLY, supra note 188, at 79-80.
346. See, e.g.
347. id. at 83-91;
348. Bogaards, supra note 187, at 65. The term was coined by Timothy Sisk.
349. See TIMOTHY D. SISK, DEMOCRATIZATION IN SOUTH AFRICA: THE ELUSIVE SOCIAL CONTRACT 17-55 (1995).
350. DONALD L. HOROWITZ, Conciliatory Institutions and Constitutional Processes in Post-Conflict States, 49 WM. & MARY L. REV. 1213, 1217(2008).
351. See Bogaards, supra note 187, at 64-68, 70-71, for a full discussion of the idea.
352. Larry Diamond, Nigeria: The Uncivic Society and the Descent into Praetorianism, in POLITICS IN DEVELOPING COUNTRIES: COMPARING EXPERIENCES WITH DEMOCRACY 417, 469 (Larry Diamond et al. eds., 2d ed. 1995).
353. Id. at 466.
354. Bogaards, supra note 187, at 70-73.
355. H1OROWITZ, supra note 184, at 184.
356. See Bogaards, supra note 187, at 70-71.
357. See id. at 70;
358. HOROWITZ, supra note 184, at 184-87;
359. see also Peter M. Lewis, Endgame in Nigeria? The Politics of a Failed Democratic Transition, 93 AFRICAN AFFAIRS 327(1994) (noting that the 1989 election in particular "suggested an historic merger of northern and southern populist interests, superseding the ethnic faultlines which have traditionally structured Nigerian electoral politics").
360. Indonesia: Continuity, Deals and Consensus, ACE ELECTORAL KNOWLEDGE PROJECT ENCYCLOPEDIA, http://aceproject.org/ace-en/topics/es/esy/esy-id (last visited Nov. 6, 2010).
361. See CONSTITUTION, Chapter 2. Sec. 5 (3f) 1998(2001) (Kenya). For a discussion of the regional requirements
362. see ELECTORAL POLITICS IN KENYA 41-42 (Ludeki Chweya ed., 2002).
363. See European Union Election Observation Mission, Kenya-Final Report General Elections 27 December 2007 (April 3, 2008), http://ec.europa.eu/ external-relations/human-rights/election-observation/kenya-2007/final-report-en. pdf.
364. Ten countries have regional distribution requirements for political parties running in national elections for the lower representative chamber, and three countries-India, Nigeria, and Romania- have regional distribution requirements for political parties running in national elections for the upper representative chamber. For example, in Turkey, where there are eighty-one provinces, a qualifying party has to be fully organized in at least half of the provinces and one-third of the districts within these provinces. The ACE Electoral Knowledge Network, Comparative Data: What are the Registration Requirements for Political Parties Running for National Elections (Chamber 1)?, http://aceproject.org/epic-en/CDMap?question=pc001 (last visited Nov. 6, 2010).
365. See Vera Stojarová, Jakub Šedo, Lubomír Kopecek & Roman Chytilek, Political Parties in Central and Eastern Europe: In Search of Consolidation, Central and Eastern Europe Regional Report, 62-63 (2007), http://www.idea.int/publications/pp-c-and-e-europe/upload/Regional-Report-CEE. pdf.
366. Commission Regulation 2004/2003, On the Regulations Governing Political Parties at European Level and the Rules Regarding Their Funding, 2003 O. J. (L 297) 1.
367. The amounts and the recipients of money under Commission Regulation 2004/2003 for 2005 are available at http://www.europarl.europa.eu/tenders/ subventions-2005.htm (last visited Nov. 6, 2010).
368. See Toplak, supra note 167, at 16. Under a single transferrable vote system, voters rank order candidates, and the candidate with the lowest number of first-place votes gets eliminated, and all the votes that went to her are then "transferred" to the candidate ranked second on the voters ballot. This process continues until there is a single winner (if there is more than one seat in the district, then the process becomes a bit more complicated, as votes from candidates who have hit the necessary amount also have to be transferred).
369. Daniel R. Ortiz, Note: Alternative Voting Systems as Remedies for Unlawful At-Large Systems, 92 YALE L. J. 144, 150 & n. 30(1982).
370. See Michael Gallagher, Comparing Proportional Representation Electoral Systems: Quotas, Thresholds, Paradoxes and Majorities, 22 BRIT. J. POL. SCI. 469, 485(1992).
371. Steven G. Calabresi, The Virtues of Presidential Government: Why Professor Ackerman is Wrong to Prefer the German to the U. S. Constitution, 18 CONST. COMMENT. 51, 62(2001).
372. I have only seen one reference to a similar idea. Mark Franklin, Cees van der Eijk and Michael Marsh, although supportive of pan-European ideological competition, dismiss the possibility of such a legal requirement as not "practical."
373. Franklin et al., supra note 175, at 379. They do not explain why they think it is not practical, though.
374. If this rule was in place in 2009 and all current Euro-party groups got the same vote as their constituent domestic parties received in 2009, each of the eight Euro-party groups would have received representation. The European Conservatives and Reformists group is the only party that would have come close to missing the mark, having received over three percent in exactly eight countries.
375. See Results of the 2009 European Elections, supra note 102 (examining results by country and party).
376. Ernest Young argues that one of the main protections of the powers of Member States is the absence of representative democracy in the EU.
377. See Young, supra note 7, at 1705. The lack of programmatic parties, he claims, makes the EU less legitimate and hence less likely to take power from Member States. This may be true, although it is equally true of other things that would contribute to the EU's legitimacy, like conducting policy well. However, some degree of competition for legitimacy is built into the EU system, and this reform-if it worked-would only introduce that type of competition to the level envisioned by the EU's existing treaties.
378. See generally Day & Shaw, supra note 67, at 295-320.
379. No party has ever had fifty percent of the seats in EP necessary to organize it. Nor has any combination of two parties aside from the two major parties, the PES and EPP.
380. See DEMOCRATIC POLITICS, supra note 4, at 24-26.
381. Justine Hunter, Vision Prevails in Landslide Victory, GLOBE AND MAIL (Can.), Nov. 17, 2008, at S2;
382. Greg Joyce, Voters Heading to Polls in B. C. Municipal Elections, PORTAGE DAILY GRAPHIC (Can.), Nov. 18, 2005, at 9;
383. See Why Vancouver Works, MACLEAN'S (Can.), July 27, 2009, at 2.
384. See generally Martin Patriquin, Montreal is a Disaster, MACLEAN'S (Can.), Nov. 9, 2009.
385. Id.
386. One of the major critiques of the Fiorina model is that political party identification is more likely to be determined by tribal-like personal identification rather than by assessment of possible policy outcomes. See GREEN et AL., supra note 164, at 8-11. To the extent that this is correct, the suggested reform will be particularly attractive as there will be no group on the ballot with which to identify, voters will have to make an assessment of policies in order to determine whom to vote for and not merely rely on their group identification.
387. In an important contribution to this discussion, Richard Pildes has called for constitutional arrangements with time limits. Richard H. Pildes, Ethnic Identity and Democratic Institutions: A Dynamic Perspective, in CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES: INTEGRATION OR ACCOMMODATION? 173, 185-88 (Sujit Choudhry ed., 2008). He argues that consociational arrangements may be important at the outset of new democracies, but that a move to centripetal laws is often good. He suggests, following the example of the South African Constitution, that centripetal arrangements be given a time limit to phase out, allowing their replacement (and avoiding their calcification) with policies designed to create post-ethnic societies.
388. Id. A similar idea might be useful in EP elections, although in the opposite direction.
389. Local elections in Europe are generally second-order, although less so than EP elections.
390. See Anthony Heath, Iain McLean, Bridget Taylor & John Curtice, Between First and Second Order: A Comparison of Voting Behaviour in European and Local Elections in Britain, 35 EUR. J. POL. RES. 389(1999).
391. In an interesting new essay, Paul Edelman argues that the "institutional dimension" of electoral design is extremely understudied.
392. See Paul H. Edelman, 'And the Oscar goes to...' The Academy Awards and the Institutional Dimension of Election Design (Vand. L. & Econ. Res., Working Paper No. 9-23, 2009), available at http://papers.ssrn.com/sol3/papers. cfm?abstract-id=1456529. Edelman argues "that elections are about more than just preference aggregation. Elections are organized by institutions, and those institutions may have interests that are distinct from the preferences of voters." Instead, vote counting systems can achieve specific institutional goals, like higher ratings for the Oscars. Further, his analysis of vote counting systems in democracies shows that the methodology for tabulating preferences will necessarily involve different institutional goals and theoretical ideas about what constitutes a democratic result. Rather than thinking of particular election methods-proportional representation, first-past-thepost, instant run-off, etc.-as better or worse than others, they should be analyzed by how well they achieve specific institutional goals, of which accurate tallying of pre-existing preferences is important, but by no means the only value. Edelman's argument has much in common with Samuel Issacharoff's brilliant work on election law in transitional constitutional orders.
393. See generally Samuel Issacharoff, Fragile Democracies, 120 HARV. L. REV. 1405(2007) (examining how election law rules can, in different institutional settings, create different incentives, and why democracies at different levels of security might make different decisions on rules governing elections). This Article argues that EP vote counting system should attempt to fit the institutional interests expressed in the treaties establishing the EU and its separation of powers.
394. This is why some big city mayoral general elections are competitive.
395. See Schleicher, City Council Elections, supra note 31, at 445-47.
396. See HEATHER GERKEN, THE DEMOCRACY INDEX 15-26 (2009).
397. Id.
398. Even in this situation, these elections may have the problem of not providing much of a check on abuse by officials, as corrupt officials can continue in office by function of maintaining support from their major party and from voters who vote the party line.
399. See Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311, 2315(2006).
400. See id. at 2323-24.
401. Id. at 2323-27;
402. see also Daryl Levinson, Empire Building, 118 HARV. L. REV. 915, 936-41 (2005).
403. See Schleicher, City Council Elections, supra note 31, at 468-73.
404. GERKEN, supra note 227, at 5-6, 26-37.
405. Id. at 66-80.
406. Levinson & Pildes, supra note 230, at 2368-71.
407. See id. at 2372-75.
408. See generally Guy-Uriel E. Charles, Democracy and Distortion, 92 CORNELL L. REV. 601, 604(2007);
409. Heather K. Gerken, A Third Way For the Voting Rights Act: Section 5 and the Opt-In Approach, 106 COLUM. L. REV. 708, 748-49 (2006).
410. Saying that election laws have a major effect on how voters form preferences is a very different thing from saying that election campaigns do. James Gardner has recently written an excellent book attacking the notion that much persuasion happens during campaigns, and noting that much political discourse (and legal thinking) that is built around the idea that campaigns are true deliberative debates is flawed.
411. See JAMES A. GARDNER, WHAT ARE CAMPAIGNS FOR? THE ROLE OF PERSUASION IN ELECTION LAW AND POLITICS 1-7 (2009). However, this does not address whether the laws that structure politics give voters tools that allow them to develop informed opinions. For instance, election law rules are crucial to ensuring that parties are consistent in their ideological positions over time.
412. Decisions like Duke v. Massey, 87 F.3d 1226 (11th Cir. 1996), in which the Republican Party was allowed to expel David Duke for ideological apostasy, give political parties greater control over their own ideological brand. Parties that are consistent ideologically over time allow voters to develop useful running tallies based on retrospective evaluations of how politicians behave while in office. The legal rule is hence relevant to the voting decision. However, none of this requires that anything happens during an election campaign.
413. See supra notes 161-163 and accompanying text.
414. A public good is traditionally defined as a good that is both non-rivalrous and non-excludable. In other words, the consumption of the good by one person does not bar consumption of the good by another person, and no one can be barred from using the good.
415. Abraham Bell & Gideon Parchomovsky, Of Property and Antiproperty, 102 MICH. L. REV. 1, 9(2003). Public goods are underprovided by markets because the producers of the good do not capture the full benefits of consumption of the good.
416. Id. at 9-11. Information is generally considered to be the purest of all public goods.
417. Id. at 11. Relevant heuristics for a level of government are exactly the types of public goods that are underprovided by political markets-they are valuable to voters, but not necessarily in ways that translate into votes for the parties that would bear the cost of developing them.
418. See id. at 14-17.