UK ELECTION LAW: A CRITICAL EXAMINATION

Vol. 16 No. 6 (June, 2006) pp.462-464

UK ELECTION LAW: A CRITICAL EXAMINATION, by Bob Watt. London, UK: Glasshouse Press, 2006. 264pp. Paper. £22.95/$42.81. ISBN: 1-89541-916-X.

Reviewed by Lori Ringhand, University of Kentucky College of Law, Lexington, KY USA. Email: lring2 [at] uky.edu.

In a democratic system of government, two types of political questions must be resolved. There are the day-to-day questions of policy preferences: Do I support tougher environmental regulations, or do I believe such regulations would result in an unacceptable loss of jobs? Should my school district raise local taxes to increase teacher salaries? Who do I want to be my Senator? But antecedent to these policy questions is a group of more fundamental questions, involving regulation of the political process through which the day-to-day policy issues are decided: Should political party primaries be open to all voters or only registered party members? How should election campaigns be financed? Who should determine the boundaries of electoral districts?

These latter questions form the heart of election law – the laws used to govern the political process itself. There is a notable variety, however, in the election laws adopted by different democratic nations. This makes comparative work in this area particularly useful. Bob Watt’s UK ELECTION LAW: A CRITICAL EXAMINATION provides an excellent opportunity for such comparisons.

Watt sets out to examine recent changes to British election law, including experimentation with alternative voting methods, increased regulation of campaign financing, and new restrictions on political advertising. Much of his assessment is insightful, and there is a great deal here that should be of interest to scholars of election law, inside and outside the UK. Before embarking on his analysis of these specific issues, however, Watt lays on the table his ideological approach to the entire field of election law. Election law, he says, must promote a “democratic” rather than a “market” theory of politics. This dichotomy – between regulations that reflect a “democratic” approach to electoral politics and those that reflect a “market” approach – underlies Watt’s entire analysis of Britain’s regulatory scheme.

In one sense, there is nothing wrong with this distinction, and there certainly is nothing wrong with Watt’s decision to reveal his ideological preferences up front. He states, quite correctly, that “election law is not black letter law; it always has a political purpose” (p.1). Watt’s plain statement of this fact is refreshing: too often scholars (and judges) write about election regulations as if they can be evaluated in a vacuum, without any preexisting commitment to a particular vision of what “democracy” entails. But of course the most pressing questions in election law today – questions, for example, about what type of campaign financing “corrupts” the electoral process, or what factors should and should not be considered when creating electoral districts – simply cannot be answered without reference to some background notion of what democracy itself means.

Watt’s difficulty, then, is not that he has and states a preferred vision of democracy. Rather, it is that his presentation of his preference presupposes away many of the most difficult questions in this area of law. Consider his choice of terminology. Watt states in the introduction that his ideological preference is for a “democratic theory” rather than a “market theory” of politics. A “democratic” society, he says, “is one in which all members of society have a stake in deciding upon the common good” (p.21). A “market” society, in contrast, is one in which “each person individually takes delivery of what they ‘need and want’” (Id.). Thus, markets are “mechanisms for aggregating individual demands and facilitating the fulfillment of individual goods” (p.21), while democracies are “mechanisms for ensuring the collective good” (p.21). A “democratic” theory of politics is therefore by definition one which encourages citizens to work together for the common good of society.

Watt may very well be correct that his vision of democracy – one in which citizens and elected officials work in furtherance of some external, ascertainable public good rather than pursue their personal self-interest – is the vision of democracy that election law should promote. But to a priori attach the label “democratic” to this particular construction of democracy defines away volumes of scholarship debating the relative merits of pluralism versus civic republicanism. UK ELECTION LAW would have been enhanced by more in-depth consideration of the deeply contested nature of the very concept of “democracy” promoted here.

Having established his preferred vision, however, Watt is a persuasive advocate for it, and his book offers a valuable guide to recent developments in British election law. Britain has experimented far more than many countries, including the United States, with certain aspects of election regulation, such as Internet-based or other types of “remote” voting, limitations on campaign spending in addition to campaign contributions, and party control of “spoiler” candidates. Watt’s discussion of each of these issues is lucid and informative.

In regard to remote voting, Watt poses important questions about ballot secrecy and social control. For example, he is concerned that employers, spouses, or others will be empowered by remote voting to manipulate the ballot choices of those who are emotionally or financially dependent on them. His discussion of Britain’s choice to limit campaign expenditures also is thought-provoking, and highly relevant to U.S. scholars, given that this type of regulation is once again currently before the U.S. Supreme Court in RANDALL v. SORRELL, a case challenging the constitutionality of a Vermont law imposing similar restrictions on campaign spending. Finally, Watt’s discussion of “spoiler” candidates, while drawing some very fine lines between candidates a party can properly keep from co-opting its name (candidates whose only purpose is to “trash” or mock the electoral process) and those it cannot (candidates who are merely internal party dissenters) is particularly valuable. The ability of political parties to control who appears on the ballot under their name raises numerous complex issues, and comparative study in this area is sure to be useful.

At times, however, it is tempting to wonder if Watt’s commitment to civic republicanism leads him to compare an idealized past to what he sees as an increasingly troubling present. The clearest example of this can be found in his treatment of the use of communication technology in elections. Watt opposes the distribution of political information on the Internet. The Internet, he says, atomizes voters, cutting them off from the vigorous public debate that (apparently) occurs elsewhere. The posting of campaign materials on the Web is particularly offensive, because, according to Watt, making political information available on the Internet will lead to a reduction in more traditional campaign communications such as broadcasts and literature distributions, thus reducing the quality and quantity of political debate.

Watt may be correct: the Internet and similar technologies may discourage the type of public dialogue he believes should inform politics. But they may not. It seems at least plausible that the Internet provides a lively, vital forum for pointed and vigorous political debate, a forum far less threatening and far more accessible to many people than the traditional public debate Watt prefers. Watt’s vision of democracy seems, unfortunately, to blind him to this potential of technology to distribute information widely and inexpensively, to reach otherwise disenfranchised voters, and to stimulate political discussion among young, web-savvy citizens.

There is one final area in which Professor Watt’s book will be useful to non-British scholars. There is an ongoing debate, particularly lively in the United States, about who should have the final say in developing and evaluating election laws: should the regulation of politics be left to politics, or should it be put in the hands of judges, presumed to be removed from the political fray? Watt comes down decisively against the politicians. Election law, he implies, is simply too important to be left in the hands of elected officials. The “most telling criticism that can be leveled against the electoral law of the United Kingdom,” he says, is that it is “the offspring of parliament” (p.120) – a product of politics. Many people question whether unelected officials will do any better. Nonetheless, Watt’s approach to this issue, like much of UK ELECTION LAW, adds a well-informed and useful comparative aspect to our discussion of these issues.

CASE REFERENCE:

RANDALL v. SORRELL, (#04-1528) (2005), Argued 02/28/2005.

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