I asked one of my colleagues who is a student of the legislative process to comment on Prof. Brownstein's view of law-making (see below). Here is what he had to say:
Ellis: There is plenty of literature on this subject, from the standpoint of interest groups and legislative decision making. For lack of a better term, Brownstein accepts a rational choice view of the legislative process, whereby costs and benefits are calculated for maximum effect and that a benefit often comes at a "price," and frequent investors in the capital of decision makers are compensated. This process of trades certainly goes on, particularly on low salience issues such as the sort of contracts described by the local government official. But the process is not completely void of deliberation and most projects that are awarded are meritorious in the first place. The fact that a political supporter was awarded a project does not mean that the award itself was based solely or even principally on the capital. Providing capital is a necessary, but not a sufficient condition for reward. Indeed, many studies of interest group influence, using PAC contributions as the group's measure of influence, do not show the "quid pro quo" described in the story below. Some studies do show that PAC giving effects legislative outputs, others do not (again the literature is fairly extensive). Moreover, once the decision making process gets beyond the calculation of individual members, larger contextual forces come into play: party, bicameralism, roles of competing groups, leadership, and electoral constituency. Moreover, other studies (perhaps Bessette's extensive analysis of case studies done on congressional decision making is the most prominent) show that legislation is often the process of deliberation rather than simply exchanging favors. So, to summarize. Yes, it happens, but the extent to which it happens depends on the issue; the causal connection between a favor and a benefits is murky; and there is some debate over the extent to which legislation generally is a product of bargaining over costs and benefits as opposed to deliberation. I don't know enough about how religious groups operate and how they would figure into this scheme, but I will try to find out. DP Daniel J. Palazzolo Associate Professor of Political Science Coordinator of the DC Initiative University of Richmond Richmond, VA 23173 804 289-8973 Ellis M. West Political Science Department University of Richmond, VA 23173 804-289-8536 [EMAIL PROTECTED] -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of A.E. Brownstein Sent: Tuesday, March 08, 2005 1:28 PM To: Law & Religion issues for Law Academics Subject: RE: Institutional Capacity to Manage Exemptions To follow up on Doug's point, one of the problem's I have with Marci's arguments about judicial exemptions and legislative accommodations is that it sometimes appears as if Marci views religious groups seeking legislative accommodations or constitutionally mandated exemptions as self interested actors concerned only with their own well being while she views legislative and administrative bodies as principled seekers and defenders of the public good. Many of us see legislative and administrative decisions differently. These are often political responses to various self interested constituencies -- some of whose goals conflict with those of particular religious communities. Religious groups have learned to play that game because it is the only game in town -- and some have gotten pretty good at it. But not all religious groups have sufficient political capital in every community in which they live to protect their interests. Moreover, in many cases, there is no reason to think that a religious accommodation protecting a religious group's ability to practice its faith is less related to the public good than a decision to reject the accommodation in order to further the interests of other constituencies with conflicting interests. When fundamental rights are at stake, I, and others, are less inclined to accept this kind of political interest balancing without some judicial supervision. To use RLUIPA as an example, in the land use regulation process, in many disputes, there are often specific groups whose personal interests conflict with the development needs of a religious congregation. The resulting land use decision will often reflect a political evaluation of the competing interest groups more than it does a principled promotion of the public good. In the prison context, in California, an association representing state correctional officers is a major political player that often opposes religious accommodations in prisons. Government attention to this association's demands on many issues is at least as likely to be politically motivated as principled. I have a very close acquaintance who has spent 30 years working in local government in California. He describes local government this way. When a citizen seeks a discretionary decision from local government, he or she is treated very much like someone going to the local bank and asking for money. The bank typically wants to know two things. Have you deposited money in the bank that you can withdraw from your account? (What have you given to the bank?) Or, alternatively, if we give you money (a loan), what will you do in the future for us (like paying back the loan with interest)? And in considering the latter inquiry, they will examine the customer's credit rating. What have you done for institutions that have loaned you money in the past? Politicians operate pretty much the same way. If you want them to decide an issue in your favor, they want to know what you have done politically that has benefited them -- then you can draw on the political capital you have developed in your account. Or, alternatively, they want to know what you can do in the future that will be politically helpful -- and a proven track record of delivering political goods is very helpful in establishing your political credit. I don't say that legislative and administrative bodies never act for the public good. Sometimes they do. But it is also the case that religious groups seeking accommodations often are willing to take into account the needs of third parties and will support a compromise that promotes the broader interests of the community. These issues are rarely entirely black and white. Alan Brownstein UC Davis At 10:03 PM 3/7/2005 -0600, you wrote: >Content-class: urn:content-classes:message >Content-Type: multipart/alternative; > boundary="----_=_NextPart_001_01C52393.C070ECAC" > >Small religions can get exemptions if they somehow get on the >legislative >agenda; the if is large. Even reviled religions can get exemptions if >they are large enough to have political clout; the Catholic vote in 1919 >was critical in big northeastern states with large Congressional >delegations and lots of electoral votes. > >A small and reviled religion cannot get an exemption from a >legislature, >and generally cannot even get equal treatment from a legislature in a >single issue vote. Everyone now says Lukumi was a clear case of >discrimination. But in the Congress that passed RFRA unanimously and >97-3, Steve Solarz could not get a single office to even talk to him about >an amicus brief in Lukumi. > >Politics also works the other way. No one could get permission to >withhold medical care from children from a court under the compelling >interest test. But the Christian Scientists got all these exemptions from >legislatures on sheer politics, and a number of legislators have enacted >vaccination exemptions. > >Judicial decisions on exemptions are sometimes political and sometimes >principled. Legislative decisions on exemptions are nearly always political. >Douglas Laycock >University of Texas Law School >727 E. Dean Keeton St. >Austin, TX 78705 >512-232-1341 >512-471-6988 (fax) > > >---------- _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
