Representation is an odd thing. As a professor of mine once hinted, it’s as much an aesthetic as a political concept. Why does red represent anger? Why does a triangle atop a square represent a house? Why do lines criss-crossing one way represent Christianity, lines criss-crossing another way represent the Nazi regime? Why does Anna Eshoo, a person whom I have never met, and whose political views I could not tell you, represent me in Washington, D.C.? (I just Googled Anna Eshoo so as to provide a link, and as a result, for the first time, I now know what she looks like. I pass by her local office on the way to the grocery store, though, and I’ve voted for her.)
Debates about representation were, of course, fundamental to the American colonies’ dispute with Britain, to the founding of the American states, and ultimately, to the founding of the American republic. Gordon Wood’s classic study on that topic includes a chapter on “The Nature of Representation.” The chapter begins with the following quote:
“It is in their legislatures,” declared a Rhode Islander, echoing Locke and all good Whigs, “that the members of a commonwealth are united and combined together into one coherent, living body. This is the soul that gives form, life and unity to the commonwealth.”
As the basis of free government, the new legislative assemblies must be constructed with great care. In the words of John Adams, they must be “in miniature an exact portrait of the people at large.” They must “think, feel, reason, and act like them.” The English House of Commons offered the obvious counterexample; in the words of James Iredell, it had degenerated into an effectively unrepresentative body “separated from, and converted into a different interest from the collective.”
Wood goes on, in this well-constructed chapter, to circle back to the original debate over representation, which began with the Stamp Act in 1765. For the English, representation was not about elections (not everyone could vote), but about “the assumption that the English people, despite great degrees of rank and property […] were essentially a unitary homogeneous order with a fundamental common interest.” Representatives could “decide by their own consciences what was good for the country[.]” To the American revolutionaries, this was absurd not so much because they rejected the concept of virtual representation on its face, but because they rejected it as applied to America. The revolutionaries agreed that there could be a public good, but they argued that America’s public good was not England’s.
Thus it’s too simplistic to say that America’s founders chose “actual representation” over Britain’s model of “virtual representation.” Rather, in Wood’s account, there was always some tension, which was never quite resolved, between the idea of a representative assembly as replicating in microcosm the polity, with each representative following implicit or explicit instructions from his constituents, and the idea of a representative assembly as a collection of individuals conscientiously striving to improve the common welfare and thereby “virtually” representing his constituents insofar as they share in that common welfare.
But all agreed that representation, whatever it meant exactly, was at the core of the new American republic. By the 1780s, Americans were calling their new government “a representative democracy,” in which “‘the right of representing is conferred by the act of electing.'” In fact, now, “all governmental officials, including even the executive and judicial parts of the government, were agents of the people, not fundamentally different from the people’s nominal representatives in the lower houses of the legislatures.” People, in the new American republic, were both totally excluded from government — to which they, the ultimate sovereigns, merely granted “fragmentary and provisional” bits of authority — and represented in every branch of government.
Yesterday, I belatedly listened to an interview from earlier this summer between NPR’s Terry Gross and Louisiana legislator Noble Ellington II. Ellington is the national chairman of the American Legislative Exchange Council, or ALEC, which has been in the news lately for its role promoting pro-business model legislation across a wide range of substantive law fields. What I would like to emphasize is the portion of the interview in which Ellington and Gross, if unwittingly, become the latest entrants into the long American debate about the nature of representation:
GROSS: Why give corporations such a big say in drafting legislation?
Mr. ELLINGTON: Well, partly because they’re one of the ones who will be affected by it. And you say a big say, but as I expressed to you earlier, and I think it needs to be made perfectly clear, that they have, they do not have the final say about model legislation. […]
GROSS: But the corporations on who are represented have a lot of input in writing the legislation, in drafting it.
Mr. ELLINGTON: Yes, they do. They have, they certainly have interest, because it’s going to affect them, so do the tax so does the taxpaying public.
GROSS: But the taxpaying public isn’t at the table.
Mr. ELLINGTON: Wait just a minute. Don’t don’t assume that.
Mr. ELLINGTON: I work for the taxpaying public. So don’t assume that they’re not, because they are. And we represent the public and we are the ones who decide. So the taxpaying public is represented there at the table because I’m there.
GROSS: I understand that, but you’re there at the table with corporations. But at the table…
Mr. ELLINGTON: Can I interrupt you again?
Mr. ELLINGTON: It’s not just corporations. I’m there, and members of ALEC is the Americans for Tax Reform, the National Taxpayers Union, National Federation of Independent Businesses – those are people that we represent as well and those are people who are members.
GROSS: But those are all pro-business, anti-tax groups. People not represented at the table include workers, union members, teachers, students…
Mr. ELLINGTON: No, ma’am. No, ma’am.
GROSS: Patients who are can’t medical bills…
Mr. ELLINGTON: You are completely wrong.
GROSS: Uh-huh. I’m sorry?
Mr. ELLINGTON: I represent…
Mr. ELLINGTON: I, me, as an elected official, I represent unions. I represent teachers. And you’re saying you want taxes raised? Is that what you’re saying?
GROSS: I don’t think I said I want taxes raised. I don’t think I said anything about what I wanted.
(Soundbite of laughter)
Mr. ELLINGTON: You said these are anti-tax, you know, these groups are anti-tax.
GROSS: I was just pointing out that Americans for Tax Reform is very, very opposed to taxes period. Just making, you know, just observing -yeah.
Mr. ELLINGTON: My constituents are opposed to taxes, period. […] And I represent those people, so I, you know, I’m a little bit taken offense when you say these people are[n’t] represented. They elected me. They elected me six times…
Mr. ELLINGTON: …just to represent them, and that’s what I do.
Leaving aside any concerns one may have about model legislation as a general matter, or ALEC in particular, this dialogue suggests many questions about the nature of representation in twenty-first century American politics. Ellington’s responses, read holistically (and I encourage you to listen to the interview, because I think the transcript leaves out some key parts), suggest a vision of representative governance in which (1) voters elect representatives; then (2) those representatives attend confabs with corporate representatives and legislators from other states, at which they develop nationwide model legislation; and finally (3) the representatives return to their state houses and decide whether or not to introduce and vote for the model legislation in their respective states.
Now, one could quibble over whether the voters are represented “actually” in this process or “virtually.” Does Ellington discuss, draft, introduce, and vote for ALEC legislation based upon the expressed interests and instructions of his constituents, or upon a more general sense of the common good developed in his individual conscience? Does he perceive his constituents to be his voters, or the people of Louisiana generally? Arguably, both interpretations are possible from the full interview.
But either way, it’s worth noting that third parties have been introduced into the legislative process: legislators from other states, as well as the corporate members of ALEC. These are not actors contemplated in either the actual or virtual representation models. In Ellington’s account, the public, apart from its periodic opportunities to vote, has no direct role to play in the process of drafting, debating, or voting on legislation. At those stages, it’s all Ellington: “I, me, as an elected official,” he says. “I represent unions. I represent teachers.” But who is he representing his constituents to? Not to his fellow legislators in Baton Rouge, who in turn represent other Louisiana districts. Rather — at least at the drafting stage — he’s representing his constituents in talks with legislators from other states and corporate representatives.
Why should these third parties have a role in drafting legislation for Louisiana, or any other state? The corporate representatives are invited, Ellington says, because the legislation “[is] going to affect them.” By that logic, of course, any number of other groups should be present at the ALEC conferences. But I’m actually more interested in this other aspect of ALEC — this idea of bringing legislators from different states together to draft model legislation. The corporate participants in ALEC conferences and task forces could be replaced with any third-party influence of your choice — unions, identity-group advocacy organizations, take your pick — and this other question would remain: should legislators elected to represent their constituents in their state capital instead be collaborating with legislators from other states? Ellington’s is certainly a coherent view of the political process, but it’s worth asking if it’s the one actually enshrined in the various state constitutions setting up the various state legislatures.
Of course, Ellington wasn’t asked here to provide a comprehensive account of his vision of how the political process works, so there’s a limit to how far you can assume him to believe the logical implications of the positions he’s taken in this one interview, in response to particular questions. But precisely given the ambiguity of his responses, and given the rising tide of popular concern about the influence of corporations, unions, and other groups upon state and national lawmaking, I wonder if it isn’t time to have a national discussion about what, exactly, representation really means.