George Wythe Review Spring 2018

Page 1



A PUBLICATION OF THE AMERICAN POLITICS & POLICY PROGRAM OF PATRICK HENRY COLLEGE ________________ Volume 9 • No. 2 • Spring 2018

Editor-in-Chief: Christopher Baldacci Associate Editor: J. Michael Patton Publication Editor: Abigail Carter Research Editor: Marina Barnes Faculty Supervisor: Dr. Michael Haynes

PATRICK HENRY COLLEGE Purcellville, Virginia www.phc.edu Copyright © 2018 ISSN 2153-8085 (print)


T

RI

CK

EG

PA

E

Y LIC

AME

RI

PO

OLITICS & NP A C

H E N RY C O

LL

The George Wythe Review is an undergraduate journal dedicated to the integration of faith and reason in American domestic public policy. The editors of this journal recognize that contemporary domestic public policy is navigating the uncharted waters of rapidly advancing technology, an increasingly globalized political environment, and a bureaucratic federal government. The journal is a response to this climate, providing undergraduate students at Patrick Henry College with a venue to engage this climate through quality academic papers. In the vein of the journal’s namesake, the editors are committed to fostering an environment for discussion that enhances the mission of both the American Politics and Policy Program and Patrick Henry College. The George Wythe Review is published twice during the academic year by the American Politics and Policy Program of Patrick Henry College. Essays in the journal do not necessarily represent the views of Patrick Henry College, the editors, or the editorial board. The responsibility for opinions and the accuracy of facts in the essays rest solely with the individual authors. Direct all correspondence to the address below. Patrick Henry College 10 Patrick Henry Circle Purcellville, VA 20132 (540) 338-1776 georgewythereview@students.phc.edu All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means—electronic, mechanical, photocopying, recording, or otherwise—without the prior written permission of the copyright owner. Authors of the respective essays in this publication retain copyright privileges. Copyright © 2018• Printed in the United States of America.


CO NTENTS ________________ Volume 9 • No. 2 • Spring 2018

Letter From the Editor

1

3 A Mark of Integrity: Whether Photo ID Laws Safeguard the Electoral Process Helaina Hirsch This study addresses whether photo identification laws actually have the ability to safeguard the electoral process by examining whether photo identification laws reduce voter fraud, whether they increase public confidence in the electoral process, and whether they have the effect of reducing voter turnout. It postulates that marking voters with indelible ink, a system used in other democracies, is a viable alternative to requiring photo ID.

How Much Does the Corporate Tax Actually Cost? An Analysis of U.S. Revenue Generation Policy

30

Christian McGuire This study performs a meta-analysis on existing literature to determine the average effective tax rate in the U.S. and compares this rate to the scholarly consensus on the revenuemaximizing rate to determine if corporate tax cuts will increase revenue.

An Underestimated Power: Women in Terrorist Organizations

41

Julia Tomaszewski Women are a powerful and underestimated force in terrorist activities. This study suggests that successful counterterror initiatives must account for female influence when combatting violent Islamic extremism.


Resolving the Dispute Over Dispute Resolution: Alternative Dispute Resolution in Federal Agencies

55

Daniel Thetford The purpose of this study is to determine to what extent alternative dispute resolution has been more cost and time efficient after twenty-seven years of use in federal agencies. This paper will also answer two qualitative questions: how effectively does ADR approach the vast diversity of disputes in and between federal agencies, and how effective is ADR at providing win-win results to conflicting parties.

The Other Side of the Coin: Demand Side-Policy Alternatives to the Drug War

70

Johanna Christophel Since President Richard Nixon declared a national war on drugs in 1971, the United States has spent upwards of one trillion dollars cracking down on illicit substances. This paper considers whether demand-side programs are a more effective and economical means for addressing America’s drug crisis.

89 Coming to America: An Analysis of Proportional Representation in the States Keith Zimmerman The United States is one of the only democracies in the world to resist the adoption of proportional representation systems, which are used around the world to elect legislators and statesman. This study examines the history of proportional representation in America, examining its effectiveness as an alternative voting system.

Hidden Advocacy: How NGOs Can Use Bureaucracy to Protect Rights in Authoritarian Regimes

105

Thomas Siu Nongovernmental organizations are often very effective at advocacy in Western nations, where they enjoy the freedom to advance a wide range of policy goals. However, NGOs in repressive states face a variety of external threats. This study examines the challenges NGOs face in authoritarian states and how those NGOs engage in effective advocacy within foreign bureaucracies to advance their goals.


GEORGE WYTHE REVIEW

Letter From the Editor Dear readers, It is my pleasure to welcome you to this semester’s edition of the George Wythe Review. It is a delight to address you as the new Editor-in-Chief of this prestigious publication. While I have some large shoes to fill, I am surrounded by a driven and brilliant team of editors, and I am certain that you will be as impressed by their work on this Review as I am. Together, we are confident that you will find that this edition of the journal—and each edition to come—is better than the last. Over the last year, the American political landscape has been marred by division, scandal, and tragedy. Now, more than ever, the country is in need of clear and insightful analysis that acknowledges the complexity of the world we live in and the difficulty of the problems we face. From the first pages of this journal, you will find that our authors provide such analysis, offering well-researched opinions on a number of pressing issues. Moreover, while the Review is a domestic policy journal, this edition uniquely considers how American policy is connected with the rest of the world by including studies on terrorism, proportional representation, and multinational NGOs. Our first study, conducted by Ms. Helaina Hirsch, considers the effects of voter identification laws and theorizes that there may be alternative ways to protect the integrity of elections. While discussion of this topic is often polarizing, Ms. Hirsch provides an even-handed survey of the literature and offers a balanced perspective on an issue that is being debated in state legislatures and courthouses across the country. The second study comes from this journal’s previous Editor-in-Chief and one of Patrick Henry College’s sharpest minds. Mr. Christian McGuire provides a timely analysis of tax policy and hypothesizes that the recent landmark tax reform passed by the Republican Congress may not lead to increased revenue. Ms. Julia Tomaszewski is the author of our third study. She examines a topic that has not been discussed much by this journal: terrorism. Specifically, Ms. Tomaszewski seeks to aid our counterterrorism efforts by detailing the often-overlooked ways that terrorist organizations recruit and use women for their causes. The fourth study is from Mr. Daniel Thetford. While we are all familiar with criminal trials from famous movies and TV shows, many citizens aren’t as familiar with the processes used when individuals and businesses violate agency regulations. Mr. Thetford describes methods of alternative dispute resolution and argues that settling

Spring 2018 • 1


GEORGE WYTHE REVIEW

disputes outside of court is more cost-effective and satisfactory. The fifth study is written by Johanna Christophel, a J.D. Candidate at the Washington University School of Law and a former contributor to the journal. She examines alternatives to the War on Drugs, specifically whether or not programs that reduce individuals’ dependency on illicit substances are viable alternatives to strict sentencing regimes. Keith Zimmerman, another former editor of the Review, offers an overview of alternative voting systems in our sixth study. He catalogues the ways in which Europeanstyle proportional representation systems have been used in America, and argues that they may be an effective solution to some of our country’s electoral problems. Last, but certainly not least, the final contribution to this edition comes from Thomas Siu, the head of Patrick Henry’s own Undergraduate Law Review and a frequent contributor to these pages. He offers insight into the ways in which non-profit organizations can effectively advocate for human rights in hostile and authoritarian countries. Finally, and most importantly, I would like to extend my heartfelt thanks to each member of the editorial staff—Mike Patton, Abi Carter, and Marina Barnes. Thank you for your hard work, dedication, and spunk. I couldn’t have done it without you. Additionally, we are always grateful to the Leadership Institute and the Collegiate Network. Your continued partnership makes the work of the George Wythe Review possible. And of course, the entire editorial team wishes to thank Dr. Haynes for his tireless dedication to the Review, the American Politics and Policy Program, and every single student that walks through his door. We hope we have made you proud.

All the best,

Christopher Baldacci Editor-in-Chief

2 • Spring 2018


GEORGE WYTHE REVIEW

A MARK OF INTEGRITY: WHETHER PHOTO ID LAWS SAFEGUARD THE ELECTORAL PROCESS

Helaina Hirsch Abstract In the past two decades, many states have begun to implement stricter photo identification laws. They justify these laws on the premise that no one should have the right to dilute or steal the votes of perfectly eligible voters. Without such safeguards, they reason, the electoral process will lose its legitimacy in the eyes of the American people. This study addresses whether photo identification laws actually have the ability to safeguard the electoral process by examining whether photo ID laws reduce voter fraud, whether they increase public confidence in the electoral process, and whether they have the effect of reducing voter turnout. The study concludes that, due to several weaknesses, voter identification laws have only a limited ability to prevent voter impersonation fraud. As an alternative, states should consider implementing the safeguard of indelible ink, which is immune from many of the weaknesses inherent in photo identification. ___________________________________

Spring 2018 • 3


GEORGE WYTHE REVIEW

Introduction 96-year-old Dorothy Cooper never missed voting in an election for seventy years. The 2011 election marked the first year that she was completely unable to cast a ballot. Her failure to vote was not due to an oversight on her part. Rather, it resulted from Tennessee’s new strict photo ID law that required voters to show a valid, current photo ID before casting a ballot in person (Brazile, 2011). Even though she came well in advance with her rent receipt, a copy of her lease, voter registration card, and birth certificate, she could not obtain a new photo ID simply because the name on her birth certificate differed from her current married name and she did not have a marriage license. Consequently, Dorothy’s voice in the electoral process was silenced. Because of situations like Dorothy’s, many individuals have argued that strict voter photo identification laws are impermissible because they disenfranchise eligible voters (Brazile, 2011). Conversely, others contend that even though these photo ID laws burden some voters, they are absolutely necessary in order to protect the integrity of our electoral process. Each time someone commits voter fraud, they effectively steal the vote of an eligible voter (von Spakovsky, 2008). Proponents of photo identification laws argue that in order to preserve the legitimacy of elections, some type of proof of identity is necessary. Indeed, the Commission on Federal Election Reform, a landmark committee founded by former President Jimmy Carter and statesman James A. Baker to study electoral reform, concluded, “The electoral system cannot inspire public confidence if no safeguards are put in place to preserve the integrity of the process” (“Photo ID for Voting,” 2006, para. 4). Any burden on the electorate is outweighed by the interest of the state in preserving the integrity of the electoral process; an interest that the Supreme Court has considered to be “compelling” (Purcell v. Gonzalez, 2006). In the 2016 election, the longstanding and largely partisan feud over the necessity of photo ID laws only continued to escalate. This debate raises the question of whether strict photo ID laws protect the integrity of the electoral process. To answer this question, this study will test the hypothesis that laws requiring an individual to show photo identification before casting a vote can effectively safeguard electoral integrity. Testing the hypothesis involves examining three indicators of effectiveness: first, the relationship between photo ID laws and impersonation voter fraud, second, voter ID laws’ effects on public confidence, and third, whether the laws place a severe burden upon the electorate. Finally, this study will examine whether alternate methods of verification, such as indelible ink, would have equal ability to protect electoral integrity.

4 • Spring 2018


GEORGE WYTHE REVIEW

Literature Review In order to understand whether photo ID laws are necessary, many researchers have conducted studies on the prevalence of the different types of voter fraud. Some researchers found voter fraud to be a significant issue. Apfel (2008) identified multiple different types of voter fraud, including absentee ballot fraud, voter impersonation, vote buying, and voter registration fraud. Richman, Chattha, and Earnest (2014) compiled extensive survey data focusing specifically on the occurrence of noncitizen voter fraud to conclude that a considerable portion of non-citizens voted in 2008 and 2010. New York City’s Department of Investigations provided further literature attesting to the frequency of fraud when they sent undercover agents, who pretended to vote under fictitious names, to more than 60 polling places. Their study concluded that impersonation fraud is relatively easy to commit (Fund, 2014). By contrast, other studies cast doubt on the narrative that voter fraud is pervasive. Minnite (2007) defined voter fraud as knowingly and willingly voting illegally and, based on this definition, conducted a study on the occurrence of fraud. Once she distinguished actual fraud from human error, her study concluded that voter fraud is a minuscule problem (Minnite, 2007). Another researcher concluded that fewer Americans are struck and killed by lightning annually than commit impersonation voter-fraud (Levitt, 2012). Ultimately, most researchers agree that no comprehensive data on the occurrence of voter fraud exists. Evidence of voter fraud mainly originates from interviews, local newspaper articles, and court proceedings. However, officially compiled reports of voter fraud statistics simply do not exist. The FBI’s uniform crime reports do not include voter fraud cases, even though such crimes are technically considered felonies. A few organizations have attempted to fill this gap, however, with self-compiled databases on fraud. The Heritage Foundation maintains a database on voter fraud that tracks the growing number of recent convictions and currently catalogues over 1,000 proven cases of voter fraud (“A Sampling,” n.d.). The Republican National Lawyers Association similarly published a list of voter fraud cases, finding that voter fraud is indeed a widespread problem (“Election Integrity News,” n.d.). Arizona State University conducted an in-depth study of fraud rates throughout America from 2000 to 2011 (Carson, 2012). Despite not obtaining results from non-responsive states such as Massachusetts, Oklahoma, South Carolina, and South Dakota, their efforts resulted in one of the most comprehensive databases on fraud in the country. This study provides a unique perspective on the issue by separating occurrences of fraud by state and specific type of fraud. A sharp divide exists in the literature that examines the effects of photo ID laws on voter turnout and participation. Some studies assert that these laws significantly

Spring 2018 • 5


GEORGE WYTHE REVIEW

inhibit participation, especially among minority voters (Newkirk, 2017). Another study used voting data from the Cooperative Congressional Election Study to determine that strict photo identification laws “skew democracy toward those on the political right” and away from racial and ethnic minorities (Zoltan, Nazita, & Lindsay, 2017, p. 363). Similarly, the Government Accountability Office (GAO) performed a quasi-experimental analysis to measure the effects of voter ID laws on turnout by comparing voter turnout in states that implemented strict photo ID laws, such as Kansas and Tennessee, to similar states that did not implement such laws. They concluded that turnout among eligible voters decreased at a greater rate in states that implemented photo ID laws than in states that did not implement such measures (Government Accountability Office, 2014). Scholars are also divided on whether photo identification requirements increase turnout by bolstering confidence in the electoral process. Hans von Spakovsky (2015) conducted a study on Texas’ strict photo ID law and came to the conclusion that turnout actually increased during the 2013 state elections. Though it plummeted in 2014, it did so at a lesser rate than it did in the rest of the United States (von Spakovsky, 2015). On the other hand, Mabrey’s study asserted that voter ID laws have no significant effects on overall turnout or on turnout among racial and ethnic minority groups (Mabrey, 2016). Other major studies agree that voter turnout is less related to photo ID laws and more related to other variables, such as the candidate running, the closeness of the race, or the likelihood that a person’s favorite candidate will win (Stewart, Ansolabehere, & Persily, 2016). Many policymakers justify the passage of photo ID laws due to their ability to increase confidence among the electorate. The Carter-Baker Commission Report, which provides a comprehensive plan for electoral reform, advocated electoral safeguards in order to maintain public faith in the democratic process. The Supreme Court drew upon this reasoning in Crawford v. Marion County Election Board (2008), upholding Indiana’s voter ID law partly because the Court believed it would build confidence in elections. Many studies have tested whether photo ID laws indeed have the ability to achieve this goal. One major study conducted by Stanford University examined the effects of voter identification laws on voter confidence, both on a statewide and national level. The study ultimately found that these laws only have a limited effect to this end (Stewart et al., 2016). Another prominent project, conducted by Bowler and Donovan (2016), studied the relationship between voter ID laws and party affiliation. Their findings revealed that voter ID laws’ ability to build confidence depends, in a large part, upon whether the individual is a Republican or Democrat (Bowler & Donovan, 2016). Further literature has examined potential alternatives to voter ID reforms. Many studies assert that voter registration reform should be at the top of the

6 • Spring 2018


GEORGE WYTHE REVIEW

legislative agenda, since outdated registration lists currently pose the greatest threat to our electoral integrity. The Pew Center on the States found a disconcertingly large number of dead voters and voters who had moved that were still registered (“Inaccurate,” 2012). Another election expert suggested reforming the registration process in states that allow people to register without first proving their citizenship (Jordan, 2015).

Data and Methods This study seeks to measure whether photo identification laws can strengthen a state’s ability to prevent fraudulent voting practices. To do so, this study will use three indicators: first, whether photo identification laws have the ability to prevent impersonation fraud; second, whether photo IDs increase public confidence in the electoral process, and, third, whether their effectiveness is impeded by factors such as decreased voter participation. This study will rely on databases provided by News21 and The Heritage Foundation to numerically analyze the prevalence of impersonation voter fraud (Carson, 2012; “A Sampling,” n.d.). Additionally, it will rely on survey data to measure the effects that photo ID laws have on voter confidence. Finally, the study will examine whether the states that implemented photo ID laws saw a decrease in public participation. Finally, for the purposes of this study, electoral integrity is defined as the overall fairness of the electoral process, achieved by an absence of fraud. If a photo ID law has a statistically significant, positive impact on voter fraud and voter confidence, it will be deemed successful. Additionally, of the two main types of voter identification—strict and non-strict—this study focuses on strict photo ID laws, since strict laws place the heaviest burden upon voters and have been the center of the most controversy (Horwitz, 2016).

Research Background of Photo ID Laws and Voter Fraud

In the wake of the tumultuous election in 2000, states started increasing precautions to protect the fairness of their elections. Currently, 32 states require some kind of ID in order to vote. The seven states with the strictest laws currently require photo identification. This number has risen from 2012, when only four states had such a requirement (Lee, 2016). Many different forms of fraud exist, including double voting, voting by dead persons, felon voter fraud, voter suppression, registration fraud, voter impersonation, vote-buying, fraud by election officials, and absentee voter fraud

Spring 2018 • 7


GEORGE WYTHE REVIEW

(Snead & Batista, 2015). Double voting involves the process of voting twice by two different methods or under two different names. For example, in 2008, a resident of Idaho attempted to double vote by casting votes in person in his hometown and then later casting an absentee ballot in a nearby town (Snead & Batista, 2015). Vote bribery was demonstrated when, in a 2003 run-off election, a resident of Mississippi bribed voters with beer and money to cast absentee ballots for a particular candidate. Additionally, the practice of vote-buying occurred in West Virginia when Circuit Clerk Greg Stowers and five other Democrats faced the charge of paying for votes in liquor and cash, as well as performing a number of favors for supporters (Snead & Batista, 2015). In 2007, Georgia faced a conspiracy to commit absentee ballot fraud, which resulted in a change in the electoral outcome (Levy, 2014). Photo identification laws were specifically designed to prevent in-person voter fraud. Before casting a vote when an individual comes to the polls in person, the voter must present a valid form of identification. This verification process serves two main purposes: first, it verifies that the person is who they claim to be and, second, it confirms that the person’s name matches the name on the registration list. These laws also have the ability to reduce the occurrence of noncitizen voting, as well as to reduce double voting by individuals who are registered to vote in more than one state (von Spakovsky, 2011). However, photo identification laws do not mitigate other types of fraud, such as ballot stuffing, vote buying, absentee ballot fraud, human error, or collusion by poll workers (Levitt, 2012).

The Effect of Photo ID Laws on Impersonation Fraud

Available data indicates that strict photo ID laws do not have a statistically significant impact on impersonation fraud. One study that compiled comprehensive data on voter fraud between 2000 and 2011 found just 2,068 cases of election fraud in total (Edge & Holstege, 2016). Only ten of these cases consisted of impersonation fraud (Figure 1).

Figure 1. Alleged instances of voter fraud by type (Bialik, 2012b).

8 • Spring 2018


GEORGE WYTHE REVIEW

These instances occurred in Texas, Colorado, Kansas, New Hampshire, Alabama, and California (Carson, 2012). It should be noted that, aside from Kansas, none of the other six states that currently have strict photo ID laws in place, including Tennessee, Wisconsin, Mississippi, Georgia, Indiana, and Virginia, are included in this list as states that have suffered from impersonation fraud (Lee, 2016). A more recent study of fraud in Arizona, Ohio, Georgia, Texas, and Kansas revealed an increase in allegations of voter impersonation fraud. However, while there were 38 voter fraud prosecutions, not one of them was for voter impersonation (Edge & Holstege, 2016). Indeed, the majority of voter fraud databases clearly revealed that instances of voter impersonation fraud occur infrequently (“A Sampling,” 2016). Remarks by the Supreme Court and election experts suggest that strict photo ID laws are not always established to stop rampant fraud. When litigating cases surrounding new state voter ID laws, election officials in Wisconsin, Indiana, Georgia, and Pennsylvania testified in court that there were no documented instances of impersonation voter fraud (Minnite, 2014). Similarly, both South Carolina and Texas presented negligible evidence of voter impersonation fraud when their new voter ID laws faced legal challenges (Minnite, 2014). After upholding Indiana’s new voter ID law, the Supreme Court noted in Crawford v. Marion County Bd. of Elections (2008), “The record contains no evidence of any [impersonation] fraud actually occurring in Indiana at any time in its history.” Ultimately, due to a lack of documented cases, voter identification laws have not proven to significantly reduce impersonation fraud. This lack of proof is partly due to the absence of officially compiled national or state statistics on voter fraud rates (Minnite, 2014). Instead, most statistics on voter impersonation fraud come from newspaper articles, anecdotal evidence, and court proceedings. This situation makes a completely accurate assessment of voter fraud’s prevalence almost impossible. Some researchers argue that the evidence is scant because it is impossible to detect. They contend that, especially if no photo identification law currently is in place, there is no way to identify individuals who double voted or voted in someone else’s place. However, this line of reasoning may be undermined by a 2007 report by the Department of Justice (DOJ), which indicates that election-related offenses may be even easier to detect than other crimes (Donsanto & Simmons, 2007). First of all, the DOJ reasoned, election crimes occur mostly under the public eye and are thus easier to spot. Second, successful election crimes—including fraud— involve multiple individuals, which increases chances of detection. Vote bribery, for example, requires numerous voters, and ballot box stuffing requires collusion by poll workers (Donsanto & Simmons, 2007). The U.S. Election Assistance Commission interviewed over twenty election experts for their 2006 annual report on election

Spring 2018 • 9


GEORGE WYTHE REVIEW

crimes and found that the experts generally agreed that impersonation fraud is “the most likely type of fraud to be discovered” (Election Assistance Commission, 2006, p. 9). This likely arises from the fact that impersonation fraud occurs in front of poll workers who may recognize that the voter is not who he claims to be. Impersonation fraud also offers no significant benefits yet carries high risks. Voter impersonation is punishable as a felony in many states. For example, in Wisconsin, fraud is considered a felony punishable with a fine of $10,000 and three and a half years in prison (Poltrock, 2017). Rick Hasen, an election law expert from University of California, Irvine, explained the inherent difficulty of voter impersonation: “You have to know who you’re impersonating at the polls. You have to hope the person at the polling place doesn’t know who you are” (Bialik, 2012a, para. 9). Additionally, any potential benefit of voter impersonation is nearly nonexistent. A single fraudulent vote would scarcely change an election result. Yet, an organized, fraudulent conspiracy would be very difficult to successfully accomplish and greatly increase the likelihood of detection (Crawford v. Marion County Election Board, 2008). Casting just one more vote is not worth the risk of imprisonment (Crawford v. Marion County Election Board, 2008). One study likened the ease of voter impersonation to “pick-pocketing a cop” (Edge & Holstege, 2016, para. 23). Similar reasoning reduces the likelihood of in-person voting by undocumented persons. The risk of deportation is not worth the minuscule benefit of a single fraudulent vote (Atkinson, 2007). Conversely, statistics demonstrate that the many other forms of fraud, which voter ID laws cannot address, are far more prevalent. A “rare point of agreement among most election experts [is that] absentee ballot fraud is a far bigger problem than voter-impersonation fraud—about 50 times more common” (Bialik, 2012b, para. 16). This stands to reason, since there are much lower chances of being caught when sending in an absentee ballot. A member of the Carter-Baker Commission argued that, since absentee voting did require a production of photo identification, implementing photo ID requirements could not widely curtail fraudulent practices (Fortier, 2006). The privacy surrounding the absentee ballot increases the possibility of coercion and mishandling by other individuals (Fortier, 2006). A study by the Pew Research Center revealed that outdated registration lists provide significant opportunity for fraudulent practices in ways that photo identification laws cannot address (“Inaccurate,” 2012). Data gathered from the study reveals that about one out of every eight voter registrations is either inaccurate, out of date, or duplicative. These inaccuracies greatly increase the possibility of individuals registering as multiple people and then proceeding to vote in multiple states, or registering as someone else and then sending in an absentee ballot. The study concluded that approximately 2.75 million people have registered in multiple

10 • Spring 2018


GEORGE WYTHE REVIEW

states at once, and over 1.8 million dead people remain on the registration rolls (“Inaccurate,” 2012). The registration process is also responsible for many instances of noncitizen voting. California provides driver’s licenses to illegal immigrants (Sanchez, 2016). Combined with the fact that California does nothing to verify citizenship before registering to vote, non-citizens could easily cast a ballot; neither photo identification laws nor indelible ink could stop them (Mass, 2016). Other states have experienced similar situations. For example, one county in Kansas became aware, when offering voter registration at a naturalization ceremony, that about a dozen new citizens were already registered and had voted in multiple previous elections (von Spakovsky & Fund, 2016). The ease of obtaining false identification is another factor that would render photo ID laws ineffective. The Document Security Alliance, a public/private partnership dedicated to improving security documents, stated that “getting a fake ID has become as easy as ordering a pair of shoes online” (“Getting a Fake ID,” n.d., para. 1). Various Chinese manufacturers have recently created fake IDs that are nearly impossible to detect. A chief liquor license inspector reported that these IDs have correct holograms and “can pass backlight tests in states that use backlight stamps and are able to get past scanners at bars and restaurants” (“Getting a Fake ID,” n.d., para. 5). Election experts reason that if someone is willing to risk three years in prison and a $6,000 fine, it is likely that their risk would not significantly increase by showing a fake ID (Crawford v. Marion County Election Board, 2008). Regardless of these limitations and the infrequency of impersonation fraud, many election experts, as well as recent Supreme Court decisions, suggest that even if photo identification laws only had the ability to prevent one instance of voter fraud, they would be worth implementing. Election lawyer J. Christian Adams wrote, “We don’t pass laws against fraud to stop election results from changing. We pass laws against voter fraud because the system must be free from corruption” (Bialik, 2012a, para. 2). The Supreme Court affirmed that states have the responsibility to protect every single vote from being diluted or stolen (Crawford v. Marion County Election Board, 2008). Indeed, Colorado’s chief election officer, Wayne Williams, espoused the principle that each instance of voter fraud, no matter how scarce, presents a grave assault on election integrity: “Voter fraud is like bank robbery. It doesn’t happen most of the time, but it’s absolutely critical to take precautions against it” (Lucas, 2017, para. 10). The Supreme Court has agreed with this principle. In the 1984 case of Munro v. Socialist Workers Party, the majority held that “[l]egislatures should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively.” Because free and fair elections lie at the heart of American democracy, judges and government officials largely agree that states have an interest in stopping voter fraud, regardless of how many documented cases of fraud exist.

Spring 2018 • 11


GEORGE WYTHE REVIEW

Voter ID Laws’ Effect on Public Confidence in the Electoral Process

Courts and election leaders also justify the implementation of photo identification laws by their ability to uphold the legitimacy of the democratic process. They argue that even if photo ID requirements did not prevent even one instance of fraud, the regulations still are worth implementing because they increase confidence in the electoral process (Nelson & Niska, 2012). The perception of fraud can be just as damaging to the democratic process as the actual existence of fraud. In Buckley v. Valeo (1976), the Supreme Court noted that the appearance of corruption is “of almost equal concern as the danger of actual” corruption. Additionally, the Supreme Court in Crawford v. Marion County Election Board (2008) upheld Indiana’s law, SEA 483, because it reasoned that photo IDs have the ability to effectively increase confidence in the electoral process. This assertion is easily testable. People residing in states that have implemented strict photo ID laws should have an increased confidence in the integrity of the electoral process. However, evidence indicates otherwise. Major studies, conducted from the early 2000s to 2016, have found that photo identification laws only have a limited effect on the public’s perception of fraud, due to the politicized nature of these laws (Stewart et al., 2016). Thus, the ability of these laws to increase confidence in the electoral process is largely based upon party affiliation (Bowler & Donovan, 2016). National surveys have consistently shown that since states began to implement photo identification laws, the gap between the numbers of Democrats and Republicans that support such laws has increased exponentially. Shortly after the decision in Crawford v. Marion County Election Board, a majority of both Democrats and Republicans supported photo ID laws. During this time, support levels stood at 65% for Democrats and 90% for Republicans. In 2012, Democratic support had fallen to 54.4% and, finally, in 2014, to 51.8%. In total, the difference between Republican and Democratic views grew from 25.0 percentage points in 2008 to 39.4 percentage points in 2014 (Stewart et al., 2016). In addition, opinions on voter fraud, specifically impersonation fraud, are influenced by party affiliation. Republicans are much more likely than Democrats to believe that such fraud is prevalent. During the 2012 election, respondents were presented with a choice of two multiple-choice answers to measure their confidence in the results. The first was a neutral response that affirmed the fairness of the results. The second consisted of the response: “Votes were counted accurately nationwide. The man who actually received the most votes was elected president in a fair election.” To this option, 79.1% of Democrats agreed, whereas only 40.4% of Republicans agreed (Stewart et al., 2016, p. 1471). These responses remain consistent with the increase in Republican belief in voter fraud during 2012, compared to 2008 and 2014

12 • Spring 2018


GEORGE WYTHE REVIEW

(Stewart et al., 2016). On a nationwide level, this study concluded that no evidence suggests that these laws lead to a significant increase in either party’s confidence in the electoral process (Stewart et al., 2016). Overall, voter confidence depends more heavily upon additional factors. Sances and Stewart (2014) conducted a study that assessed factors affecting voter confidence and concluded that confidence is most closely related to whether a voter’s candidate or party won the last election. This theory remains consistent with the evident drop in Republican confidence after Barack Obama won the 2012 Presidential election (Langer, 2010). However, evidence supports the idea that implementation of photo identification requirements may increase Republican confidence in statewide elections. A study measured voters’ confidence in their own state elections, comparing states that met the minimum requirements from the Help America Vote Act (HAVA) with strict photo ID states. Republicans residing in states with strict photo ID laws showed substantially more confidence in the legitimacy of their state’s elections than those who reside in HAVA-minimum states (Stewart et al., 2016). On the other hand, Democrats who lived in states with strict identification laws were significantly less confident than those in HAVA-minimum states (Stewart et al., 2016). The confidence levels of Democrats were highly conditional upon whether a state employed strict photo ID requirements (Stewart et al., 2016). Thus, although photo identification may increase confidence in statewide elections among Republicans, evidence indicates that photo identification only has a small effect on nationwide confidence in the legitimacy of the electoral process.

Photo ID Laws and Voter Participation

When considering the effectiveness of photo ID laws, states should also assess whether such regulations will reduce voter participation. A law that precluded a large number of voters from exercising the franchise hardly would bolster the democratic process. All strict identification laws, whether they require a photo ID or a nonphotographic ID, make voting more burdensome. These requirements make voters jump through multiple hoops by forcing them to bring the correct form of identification and, where the law is strict, to take further action if they fail to provide that identification (Underhill, 2017). Conservative estimates place the number of registered voters who do not have the forms of identification required by the most restrictive photo ID laws at 1.2% (Levitt, 2012). However, even these conservative estimates translate into a magnitude of more than 2 million registered voters who would be impacted by this law (Levitt, 2012). For some individuals, obtaining an ID may prove especially difficult. Some will find it onerous or even impossible to obtain a birth certificate or other documents necessary to secure a new ID. Many citizens must fulfill these requirements even though they likely do not possess driver’s

Spring 2018 • 13


GEORGE WYTHE REVIEW

licenses and may not have access to public transportation systems (“The Fire,” 2016). This burden either increases or decreases depending on individual circumstances and the stringency of state law. Despite these potential burdens, current data simply does not prove a conclusive causal link between strict photo ID laws and a widespread suppression of votes. Statistically, Latino turnout was 10.3 points lower in certain states with strict photo ID laws between 2008 and 2012 than in states without strict laws (Mock, 2016). However, these numbers could not “definitively show a causal connection between voter ID laws and turnout” (Mock, 2016, para. 8). Indeed, other states, such as North Carolina, saw an increase of minority turnout after implementing strict photo identification laws. Additionally, turnout “soared” during a 2012 primary election in Alabama, despite the adoption of a strict photo identification requirement (“The Fire,” 2016). This data suggests that a rise and fall of turnout is more closely related to the competitiveness of the race or the individual candidate than to identification laws. Examining turnout in Texas’ individual counties confirms this principle. For example, Tarrant County’s 2014 legislative race was far more competitive than the 2012 race, which caused the 3% uptick in turnout between those years. Similarly, in the heavily Hispanic Hidalgo County, Texas Governor Greg Abbot’s active GOTV measures caused a boost in turnout (“So, is it,” 2014). In the words of The Economist, “Demonstrating a single rule’s consequences is tricky; proving why people fail to vote is particularly fraught” (“The Fire,” 2016, para. 8). Photo ID laws certainly have the potential to severely burden some individuals, but they do not result in disenfranchisement on a nationwide scale.

An Alternate Option

The infrequency of impersonation fraud, politicization of the issue, and increased burdens on voting all undermine the effectiveness of photo identification laws. However, no matter how rare impersonation fraud is, research demonstrates that it has occurred and could occur in the future, as well. The importance of protecting every citizen’s vote lends credence to the claim that states should have the option of implementing safeguards to prevent even the possibility of impersonation fraud. Given the weaknesses present in photo identification, the question going forward is whether a better option exists. One answer can be found in a method that the United States has already utilized in developing countries to help assist fledgling democracies: indelible ink (Frezza, 2012). Due to its ability to stop repeat voting, its inability to disenfranchise, and its low cost to the state, indelible ink may provide a viable alternative to states that wish to implement safeguards to protect their election processes.

14 • Spring 2018


GEORGE WYTHE REVIEW

This method is increasingly utilized in major democracies around the world to prevent double voting. Indian-made indelible ink has been shipped to over 20 countries, including Sierra Leone, East Timor, and Cambodia (Anand, 2014). Before casting a vote at the polling place, poll workers mark the voter’s thumb with an inerasable ink mark. Once applied, it indicates that the voter has already cast a ballot, thus preventing them from coming back with the intent of casting a second ballot (“CSIR’s Memorable Mark,” 2016). This indelible ink is composed of silver nitrate. When applied to voters’ finger, the silver nitrate reacts with the salt on the skin and subsequently forms silver chloride. This new substance remains on the skin and does not wash off because it is not soluble in water (“With the Indian Election,” 2014). The marketing manager of Mysore Paints and Varnish Limited, the company that produces the indelible ink used in India, noted that indelible ink is nearly impossible to remove and remains on the voter’s finger for as long as a month. Mr. Harakumar revealed, “If the voters try to remove the ink through any chemical concoction they might end up burning their fingers” (“Erase Voting Ink,” 2016, para. 3). The company that produces ink is certified by the National Research Development Corporation and produces the substance in conjunction with the Election Commission (“Erase Voting Ink,” 2016). Mexico’s indelible ink also has proven to be inerasable. In Mexico, the Federal Electoral Institute and the National School for Biological Sciences at the National Polytech Institute in Mexico City developed an ink designed to remain on the voter’s fingers at least three days after its application (“Elections in Mexico,” 1994). To determine the effectiveness of this method, the Carter Center sent a delegation to Mexico city to test the true indelibility of the ink. After attempting to remove the ink with chlorine bleach, hydrogen peroxide, alcohol, acetone, saliva, Coca-Cola, urine, baking soda, and various household detergents, the delegation confirmed the veracity of the government’s claim that the ink is indelible for three days (Scott, 1994). Indelible ink has been endorsed by both the United States and by the United Nations. The United States government endorsed this integrity safeguard for Iraq when it had provisional authority there. As one U.S. State Department official noted, indelible ink was a necessary measure to build confidence in the Iraqi electoral process (U.S. Department of State, 2005). Additionally, in his state of the union address, President George W. Bush lauded the advance of democracy in Iraq, specifically pointing to the use of indelible ink in encouraging this democracy (“Transcript,” 2006). The Iraqi-run Independent Electoral Commission of Iraq (IECI) also supported increased use of indelible ink in Iraqi elections. In 2013, the IECI sought to establish several anti-fraud measures in hopes of protecting election integrity and increasing voter confidence. To this end, they proposed a number of voting requirements, such as a voter identification requirement and updated voter

Spring 2018 • 15


GEORGE WYTHE REVIEW

lists (Young, 2009). However, in order to specifically prevent double voting, the IECI implemented use of indelible ink. Polling officials carefully inked voters’ fingers directly before they cast a ballot. The only allegations of double voting occurred when election officials failed to ink the fingers of a few members of the Iraqi Security Force (Young, 2009). Indeed, the United Nations Assistance Mission in Afghanistan (UNAMA) considered indelible ink to be a necessary means of protecting the integrity of elections in any democracy. Since Afghanistan’s elections suffered from cases of multiple voting, the UNAMA recognized that some mechanism had to be put in place to combat this problem (“Level of Interest,” 2009). The organization recognized the fragility of the electoral process and, consequently, the necessity of implementing the best possible reforms so that the election results would be accepted by the people (“Level of Interest,” 2009). To this end, the UNAMA put in place several reforms that they asserted are based on international best practices to combat fraud (“Level of Interest,” 2009). Among these, one official revealed, “The most important [antifraud] mechanism is the use of indelible ink so that a person can only vote once... There are also some other checks that can be put in place as well, but the indelible ink is the most important” (“Level of Interest,” 2009, para. 15). As one UN Senior Official noted, the ink is fool-proof, because even if a voter attempts to register under multiple names, the mark of ink will indicate that they may not vote a second time (“Level of Interest,” 2009). Use of indelible ink has been included in the election reform policies of numerous other countries as well. One study described it as an “international norm in election administration in emerging democracies [as] virtually all emerging democracies use ink to identify those who have finished the process of casting a ballot” (Ferree, Dowd, Jung, & Gibson, 2013). It has become so widely utilized by other nations and endorsed by the United Nations precisely because of its great ability to prevent double voting. For example, in Somaliland, the occurrence of multiple voting had become widespread during Somaliland’s past three elections. However, when the United States monitored Somaliland’s elections through the International Republican Institute, they found that after implementing use of indelible ink, multiple voting had become scarce (“Advancing Democracy,” 2005). The IRI attributed this improvement to the use of indelible ink, noting that “the use of indelible ink and ultraviolet lamps kept the majority of potential multiple voters from succeeding” (“Advancing Democracy,” 2005, para. 4). The security of Afghanistan’s 2004 elections enjoyed noticeable improvement after the UN and United States implemented indelible ink as one of the main mechanisms to reduce multiple registrations and voting. In fact, registration increased significantly following the implementation of the ink (“UN Mission,”

16 • Spring 2018


GEORGE WYTHE REVIEW

2004). Indeed, The Economist reported that the implementation of indelible ink in the Afghani elections meant that “most of those with multiple registrations should have only been able to vote once” (“A Fair Vote,” 2004, para. 5). Additionally, election leaders in Mexico noted that, due to the ease of obtaining false identification, indelible ink might prove more verifiable than photo IDs. New technology makes it disconcertingly simple to obtain two credentials under a false name. For example, researcher Meliton Garcia performed an experiment to test the reliability of Mexico’s electoral system. For $110, Garcia bought an official photo ID card that included his picture and a false identity. Because he also possessed a legitimate voting card, he was able to vote twice (Anderson & Moore, 2000). A hand stamped with the unmistakable mark of indelible ink would make his efforts to vote twice nearly impossible. Election officials at the second polling place would have been able to clearly see that the same person was attempting to vote. For this reason, election experts stated that, out of all of Mexico’s elaborate election reforms, “it may be the ink stain that ultimately provides the most important stamp of credibility” (Scott, 1994, para. 12). Due to its easily verifiable nature, indelible ink is used in countries that have the highest risk of voter-impersonation and vote buying (“Voting Operations,” n.d.). If states implement visible indelible ink rather than ultraviolet ink, the high visibility of the stain would provide an added deterrent to impersonation fraud. As mentioned before, studies have shown that impersonation fraud is already very risky because of the high level of exposure at the public polling place (Levitt, 2012). A highly visible, permanent ink mark would increase the risk of being spotted. Especially for voters such as illegal aliens, who face the possibility of deportation, this would have a significant chilling effect on fraudulent voting attempts. This method of identification would cost the state far less than photo IDs. One phial is sufficient for nearly 700 people (Balasubramanyam, 2013). In Mexico’s elections, the government only spent $200,000 on producing indelible ink. This is out of the $730 million that Mexico spent on anti-fraud mechanisms in general, such as a computerized electoral roll and photo ID cards with a person’s signature and thumbprint (Scott, 1994). By contrast, in Wisconsin, the Legislative Fiscal Bureau estimated that providing free identification to everyone would cost over $2.7 million dollars. Additional costs would include $2.1 million to cover public education and training in the state (Marshall, 2011). Similarly, Missouri estimated that a new voter ID policy would cost the state over $20 million over the next three years, and the Institute for Southern Studies estimated that North Carolina would have to spend at least $14 million to educate the 6 million voters about a new voter ID law over a three year period (Marshall, 2011). Furthermore, indelible ink places less of a burden on the individual voter.

Spring 2018 • 17


GEORGE WYTHE REVIEW

Rather than placing a burden on citizens to acquire and bring the correct form of identification or drive to a center that issues IDs, the state would directly provide the necessary anti-fraud measure to every voter who comes to the polls to cast a ballot. Ink has been utilized in other democracies precisely because it does not threaten to disenfranchise members of the electorate. One study noted that, in many democracies, most citizens do not possess photo identification (Maltbie, 2010). Consequently, the threat of multiple voting fraud looms over any election. However, election officials recognize that attempts to place stringent photo identification requirements on voters would surely disenfranchise large portions of the population (Ferree et al., 2013). For example, in some middle-eastern countries, such as Iraq, where women traditionally have not had the chance to exercise the right to vote, indelible ink has proven to be an effective method of preventing double-voting, while allowing wide access to the polls because this ink is effective and non-intrusive (Maltbie, 2010). Its reliability and cost-efficiency to the state and the individual voter may make it one of the best ways to avoid the double vote (Scott, 1994). Indelible ink may also be able to bolster public confidence in the electoral process. In the past, indelible ink has served to place a stamp of legitimacy on the voting process and encourage civic pride. In many countries that use indelible ink, citizens boldly wear the mark as a reflection of the fact that they had a meaningful chance to express their voices in the electoral process (Woolf, 2014). It serves as both a celebration of the ability to cast a vote and a reminder that the process ensures integrity. When used for the first time in Iraq’s 2005 elections, voters proudly displayed their inked fingers as an expression of freedom. One Iraqi citizen joyfully explained, “I’m very happy to show everybody my finger…I wish it could stay there for years and years” (Wilgoren, 2005, para. 29). The ACE Electoral Knowledge Network, an organization devoted to improving electoral integrity throughout the world, noted that indelible ink creates a “strong image of integrity control to the public for acceptance of election validity” (“Voting Operations,” n.d., para. 41). Indeed, when utilized by other countries, the public has lauded indelible ink as a symbol of democracy’s success, prompting the UNDP to consider it the “most powerful symbol of the General Elections” (“UNDP Provided Indelible Ink,” 2015, para. 5). According to the UNDP, the ink’s ability to drastically reduce the risks of multiple voting instilled confidence in the public and made the ink a symbol of democracy (“UNDP Provided Indelible Ink,” 2015). Similarly, an Indian spokesperson for a major Indian ink production company noted that the ink "signifies the power of the electorate in deciding the fortunes of contestants” (“Mysore Ink,” 2009, para. 5). These past successes indicate that indelible ink has the potential to instill similar confidence and civic pride in the American electorate. More than 50% of American citizens support implementing safeguards to prevent against fraud, as a

18 • Spring 2018


GEORGE WYTHE REVIEW

recent Rasmussen poll revealed (“Most Still Support Requiring Photo ID,” 2016). On the other hand, indelible ink provides a non-partisan solution that would incite no concerns of disenfranchisement or disproportionate impact. Instead, it has the potential of serving as the ultimate “I voted” stamp, signifying the “precious right” of expressing one’s voice in the electoral process (Wesberry v. Sanders, 1964). This combination of strengths makes ink a viable means of increasing public confidence in the electoral process. Some contended that any identification system should have the capability of preventing against illegal alien voting, ensuring that people do not vote in place of dead voters and ensuring that a person does not vote in place of someone who is registered in two states (von Spakovsky, 2011). However, research has demonstrated that the ease of obtaining false photo identification (“Getting a Fake ID,” 2014) undermines the ability of photo identification to combat this problem. The registration system, in some states, demonstrates that photo identification may also fail to prevent against noncitizen voting. In California, illegal aliens can both register to vote and obtain a valid driver’s license without proving their citizenship (Jordan, 2015). In this case, even the strictest photo ID law would not prevent illegal immigrants from casting a vote.

Conclusion The importance of protecting every citizen’s vote cannot be overstated. For this reason, states should have the ability to implement safeguards to prevent against all types of fraudulent practices, no matter how frequently they occur. Even protecting against the least common form of fraud can significantly contribute to the protection of election integrity. However, while photo identification laws present one method of accomplishing this goal, their many weaknesses should lead states to question whether a superior option exists. To this end, indelible ink presents a strong alternative. Its easily verifiable nature could ensure that no voter has the opportunity to cast a double ballot. Further, the fact that it presents a non-partisan reform would increase its chances of building public confidence in the electoral process. Finally, its burden on the state, rather than on the individual voter, will increase the accessibility of voting. There is merit to the claim that neither voter identification laws, nor indelible ink, have the ability to prevent against every type of fraudulent practices. Much like photo identification, indelible ink cannot solve every election-related problem. However, even the Supreme Court once noted that election reforms need not address every flaw in the process because the government is incapable of addressing problems in “one fell regulatory swoop” (Williamson v. Lee Optical of Oklahoma Inc., 1995).

Spring 2018 • 19


GEORGE WYTHE REVIEW

States should consider utilizing indelible ink to address important aspects of electoral integrity. Implementing indelible ink would provide a practical and reliable way for states to guard against the double vote. Indeed, the ink’s unique strengths have the potential to increase confidence in the electoral process, while helping states ensure that every individual has a meaningful chance to exercise the “most precious right” in a democratic society (Wesberry v. Sanders, 1964).

20 • Spring 2018


GEORGE WYTHE REVIEW

Reference List Advancing democracy: Iraqis adopt constitution in another victory for democracy. (2005). International Republican Institute. Retrieved from http:// www.iri.org/sites/default/files/2005%20Vol.%2016%20Issue%202.pdf Anand, A. (2014, April 17). India elections: Voters united by anti-fraud ink mark. The Guardian. Retrieved from https://www.theguardian.com/world/2014/ apr/17/indian-elections-ink-mark-voters-symbol-democratic-privilege Anderson, J. W., & Moore, M. (2000, May 27). How to vote twice in Mexico. Washington Post. Retrieved from https://www.washingtonpost.com/archive/ politics/2000/05/27/how-to-vote-twice-in-mexico/f8efc0bb-6554-475d927c-9ea8f7e659fb/?utm_term=.6c20fd926d3e Apfel, C. (2008). The pitfalls of voter identification laws in a post-Crawford world. American Constitution Society. Retrieved from https://www.acslaw. org/sites/default/files/Apfel_Issue_Brief.pdf Atkinson, R. T. (2007, May 1). Underdeveloped and overexposed: Rethinking photo ID voting requirements. Journal of Legislation, 33(2), 268288. Retrieved from http://scholarship.law.nd.edu/cgi/viewcontent. cgi?article=1078&context=jleg Balasubramanyam, K. R. (2013, October 13). India ink. Business Today. Retrieved from http://businesstoday.intoday.in/story/mysore-and-varnish-ink-pollsin-india/1/198801.html Bialik, C. (2012a, September 1). Counting voter fraud. Wall Street Journal. Retrieved from https://blogs.wsj.com/numbers/counting-voter-fraud-1165/ Bialik, C. (2012b, August 31). Voter fraud: Hard to identify. Wall Street Journal. Retrieved from https://www.wsj.com/articles/SB10000872396390443864204 577621732936167586 Bowler, S., & Donovan, T. (2016). A partisan model of electoral reform: Voter identification laws and confidence in state elections. State Politics & Policy Quarterly, 16(3), 340-361. Retrieved from https://www.researchgate.net/ publication/290192475_A_Partisan_Model_of_Electoral_Reform_Voter_

Spring 2018 • 21


GEORGE WYTHE REVIEW

Identification_Laws_and_Confidence_in_State_Elections Brazile, D. (2011, November 17). GOP, protect Dorothy Cooper’s right to vote. CNN. Retrieved from http://www.cnn.com/2011/10/15/opinion/brazilevoter-id/ Buckley v. Valeo, 424 U.S. 1 (1976) Carson, C. (2012, August 12). Election fraud in America. News21. Retrieved on April 15, 2017, from http://votingrights.news21.com/interactive/electionfraud-database/index.html Crawford v. Marion County Election Board, 553 U.S. 181 (2008) CSIR’s memorable mark with indelible ink. (2016, November 11). CSIR. Retrieved from http://csirturns75.in/csirs-memorable-mark-with-indelibleink Donsanto, C. C., & Simmons, N. L. (2007). Federal prosecution of election offenses. U.S. Department of Justice. Retrieved from https://www.justice.gov/ sites/default/files/criminal/legacy/2013/09/30/electbook-rvs0807.pdf Edge, S., & Holstege, S. (2016, August 20). Voter fraud is not a persistent problem. News21. Retrieved from https://votingwars.news21.com/voterfraud-is-not-a-persistent-problem/ Election Assistance Commission. (2006). Election crimes: An initial review and recommendations for future study. Retrieved from https://www.eac.gov/ assets/1/6/Initial_Review_and_Recommendations_for_Further_Study.pdf Elections in Mexico: Third report. (1994). Carter Center. Retrieved from https:// www.cartercenter.org/documents/1154.pdf Election integrity news. (n.d.). Republican National Lawyers Association. Retrieved from https://www.rnla.org/votefraud.asp Erase voting ink at your own risk! (2014, March 25). The Hindu. Retrieved from http://www.thehindu.com/news/national/erase-voting-ink-at-your-ownrisk/article5830556.ece#

22 • Spring 2018


GEORGE WYTHE REVIEW

A fair vote, despite a few inkspots. (2004, October 14). The Economist. Retrieved from http://www.economist.com/node/3283732 Ferree, K. E., Dowd, R., Jung, D. F., & Gibson, C. C. (2013). Experimental evidence on the effects of electoral inking on turnout in a fragile democracy. Unpublished manuscript, University of Notre Dame. Retrieved from https://editorialexpress.com/cgi-bin/conference/download.cgi?db_ name=CSAE2014&paper_id=279 The fire next time. (2016, May 26). The Economist. Retrieved from https://www. economist.com/news/united-states/21699451-todays-voting-rights-disputesare-less-clear-cut-those-civil-rights-era Flanagan, C. M., & Rogers, E. H. (2014). Photo ID laws. Project Vote. Retrieved from http://www.projectvote.org/wp-content/uploads/2014/01/POLICYPAPER-VOTER-ID-JANUARY-2014.pdf Fortier, J. C. (2006). Absentee and early voting: Trends, promises, and perils. American Enterprise Institute. Retrieved from https://www.aei.org/wpcontent/uploads/2014/06/-absentee-and-early-voting_155531845547.pdf Frezza, B. (2012, August 8). Senator Al Franken voter fraud revelations call for ways to reduce it. Forbes. Retrieved from http://www.forbes.com/sites/ billfrezza/2012/08/08/sen-al-franken-voter-fraud-revelations-call-for-waysto-reduce-it/ Fund, J. (2014, 19 January). Winning the fight for voter-ID. National Review. Retrieved from http://www.nationalreview.com/article/368864/winningfight-voter-id-john-fund Getting a fake ID has become too easy. (n.d.). Document Security Alliance. Retrieved from http://www.documentsecurityalliance.com/news/09-162011_1.html Government Accountability Office. (2014). Elections: Issues related to state voter identification laws (Report No. GAO-14-634). Retrieved from http://www. gao.gov/assets/670/665966.pdf

Spring 2018 • 23


GEORGE WYTHE REVIEW

Horwitz, S. (2016, October 25). Contention over voting laws remains after court rulings. Albuquerque Journal. Retrieved from https://www.abqjournal. com/875000/contention-over-voting-laws-remains-after-court-rulings.html Inaccurate, costly, and inefficient: Evidence that America’s voter registration system needs an upgrade. (2012). Pew Center on the States. Retrieved from http://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2012/ pewupgradingvoterregistrationpdf.pdf Jordan, M. (2015, January 7). Illegal immigrants rush to get driver’s licenses in California. Wall Street Journal. Retrieved from https://www.wsj.com/articles/ illegal-immigrants-rush-to-get-drivers-licenses-in-california-1420663013 Langer, G. (2010, July 13). Poll: Confidence in President Obama drops, GOP congress gains support. ABC News. Retrieved from http://abcnews.go.com/ Politics/2010_Elections/poll-2010-elections-confidence-in-obama-drops/ story?id=11146584 Lee, J. C. (2016, November 3). How states moved toward stricter voter ID laws. New York Times. Retrieved from https://www.nytimes.com/ interactive/2016/11/03/us/elections/how-states-moved-toward-strictervoter-id-laws.html?_r=1 Level of interest for vote should be kept alive: UNDP/ELECT. (2009, June 29). UNAMA. Retrieved from https://unama.unmissions.org/level-interest-voteshould-be-kept-alive-undpelect Levitt, J. (2012). The new wave of election regulation: Burden without benefit. American Constitution Society. Retrieved from https://www.acslaw.org/sites/ default/files/Levitt_-_New_Wave_of_Election_Regulation_0.pdf Levy, P. (2014, September 23). Mass vote registration in Georgia brings accusations of voter fraud. Newsweek. Retrieved from http://www.newsweek. com/mass-vote-registration-georgia-brings-accusations-voter-fraud-272358 Lucas, F. (2017, February 17). Here’s why state election officials think voter fraud is a serious problem. Daily Signal. Retrieved from http://dailysignal. com/2017/02/17/heres-why-state-election-officials-think-voter-fraud-is-aserious-problem/

24 • Spring 2018


GEORGE WYTHE REVIEW

Mabrey, J. J. (2016). Voter identification laws and their effects on voter turnout. Undergraduate Honors Theses. Retrieved from http://scholar.colorado.edu/ cgi/viewcontent.cgi?article=2233&context=honr_theses Maltbie, A. R. (2010). When the veil and vote collide: Enhancing Muslim women’s rights through electoral reform. McGeorge Law Review, 41(4), 1-30. Retrieved from https://works.bepress.com/amber_maltbie/1/ Mass, W. (2016, December 30). Giving driver’s licenses to illegal aliens makes illegal voting a real possibility. New American. Retrieved from https://www. thenewamerican.com/usnews/immigration/item/24963-giving-driverslicenses-to-illegal-aliens-makes-illegal-voting-a-real-possibility Marshall, E. (2011). Testimony of Eric Marshall, manager of legal mobilization, before the Wisconsin Assembly Committee on Election and Campaign Reform. Lawyers’ Committee for Civil Rights Under Law. Retrieved from https://www.866ourvote.org/newsroom/publications/document/Testimonyof-Eric-Marshall-Lawyers-Committee_AB-7_4-27-11.pdf Minnite, L. C. (2007). The politics of voter fraud. Project Vote. Retrieved from http://www.projectvote.org/wp-content/uploads/2007/03/Politics_of_Voter_ Fraud_Final.pdf Minnite, L. C. (2014). The misleading myth of voter fraud in American elections. Scholars Strategy Network. Retrieved from http://www. scholarsstrategynetwork.org/sites/default/files/ssn_key_findings_minnite_ on_the_myth_of_voter_fraud.pdf Mock, B. (2016, February 5). More research shows voter ID laws hurt minorities. CityLab. Retrieved from https://www.citylab.com/equity/2016/02/researchmore-conclusive-that-voter-id-laws-hurt-blacks-and-latinos/459819/ Most still support requiring photo ID to vote. (2016, March 4). Rasmussen Reports. Retrieved from http://www.rasmussenreports.com/public_content/ politics/general_politics/march_2016/most_still_support_requiring_photo_ id_to_vote Munro v. Socialist Workers, 479 U.S. 189 (1986)

Spring 2018 • 25


GEORGE WYTHE REVIEW

Mysore ink that leaves a mark on voter’s finger. (2009, March 9). Gulf News India. Retrieved from http://gulfnews.com/news/asia/india/mysore-ink-thatleaves-a-mark-on-voter-s-finger-1.56842 Nelson, P., & Niska, H. (2012, August 14). Debating voter ID: A means to increase confidence in elections. Bench & Bar of Minnesota. Retrieved from http://mnbenchbar.com/2012/08/debating-voter-id-a-means-to-increaseconfidence-in-elections/ Newkirk, V. R., II. (2017, February 18). How voter ID laws discriminate. The Atlantic. Retrieved from https://www.theatlantic.com/politics/ archive/2017/02/how-voter-id-laws-discriminate-study/517218/ Photo ID for voting recommended by Carter-Baker commission on election reform. (2006). Speaker Ryan’s Press Office. Retrieved from http://www. speaker.gov/general/photo-id-voting-recommended-carter-bakercommission-election-reform Poltrock, H. (2017, January 4). Pittsville man gets jail time for voting twice in spring election. Fox: WZAW. Retrieved from http://www.wsaw.com/fox/ content/news/Pittsville-man-gets-jail-time-for-voting-twice-in-SpringElection-409688125.html Purcell v. Gonzalez, 549 U.S. 1 (2006) Richman, J. T., Chattha, G. A., & Earnest, D. C. (2014). Do non-citizens vote in US elections? Electoral Studies, 36, 149-157. Retrieved from http://www. judicialwatch.org/wp-content/uploads/2014/10/Do-Non-Citizens-Vote-inUS-Elections-Richman-et-al.pdf A sampling of election fraud cases from across the country. (n.d.). Heritage Foundation. Retrieved on April 20, 2017, from https://thf-legal. s3.amazonaws.com/VoterFraudCases.pdf Sances, M. W., & Stewart, C. (2014). Partnership and voter confidence, 2000-2012 (Working Paper No. 2014-8). Retrieved from https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=2444510

26 • Spring 2018


GEORGE WYTHE REVIEW

Sanchez, T. (2016, December 28). DMV licensed 800,000 undocumented immigrants under 2-year-old law. Mercury News. Retrieved from http:// www.mercurynews.com/2016/12/28/dmv-licensed-800000-undocumentedimmigrants-under-2-year-old-law/ Scott, D. C. (1994, July 7). Mexico’s indelible ink will build confidence in wary electorate. Christian Science Monitor. Retrieved from http://www.csmonitor. com/1994/0707/07071.html Snead, J., & Batista, R. (2015, July 22). From sea to shining sea: 5 examples of voter fraud across America. Daily Signal. Retrieved from http://dailysignal. com/2015/07/22/from-sea-to-shining-sea-5-examples-of-voter-fraudacross-america/ So, is it suppressing voters? (2014, November 3). The Economist. Retrieved from https://www.economist.com/blogs/democracyinamerica/2014/11/texassvoter-id-law Stewart, C., III, Ansolabehere, S., & Persily, N. (2016). Revisiting public opinion on voter identification and voter fraud in an era of increasing partisan polarization. Stanford Law Review, 68, 1455-1489. Retrieved from https:// review.law.stanford.edu/wp-content/uploads/sites/3/2016/08/6_-_Persily_-_ Stan._L._Rev.pdf Transcript: President Bush’s State of the Union address. (2006). Washington Post. Retrieved from http://www.washingtonpost.com/wp-dyn/content/ article/2006/01/31/AR2006013101468.html Underhill, W. (2017, June 5). Voter identification requirements/voter ID laws. National Conference of State Legislatures. Retrieved from http://www.ncsl. org/research/elections-and-campaigns/voter-id.aspx UNDP provided indelible ink in Myanmar elections: A powerful integrity tool. (2015, November 25). United Nations Development Programme. Retrieved from http://www.mm.undp.org/content/myanmar/en/home/presscenter/ pressreleases/2015/11/25/undp-provided-indelible-ink-in-myanmarelections-a-powerful-integrity-tool-.html

Spring 2018 • 27


GEORGE WYTHE REVIEW

UN mission to Afghanistan says voter registration tops 500,000. (2004, January 22). United Nations News Centre. Retrieved from http://www.un.org/apps/ news/story.asp?NewsID=9532&Cr=afghanistan&Cr1=#.WRI0HM6JnlJ U.S. Department of State. (2005). Foreign Press Center background briefing: Elections in Iraq. Retrieved from https://2002-2009-fpc.state.gov/41380.htm von Spakovsky, H. (2008). Stolen identities, stolen votes: A case study in voter impersonation. Heritage Foundation. Retrieved from http://www.heritage. org/report/stolen-identities-stolen-votes-case-study-voterimpersonation von Spakovsky, H. (2011). Voter photo identification: Protecting the security of elections. Heritage Foundation. Retrieved from http://www.heritage.org/ report/voter-photo-identification-protecting-the-security-elections von Spakovsky, H. (2015). Revisiting the lessons from the voter ID experience in Texas: 2015. Heritage Foundation. Retrieved from http://www.heritage.org/ report/revisiting-the-lessons-the-voter-id-experience-texas-2015 von Spakovsky, H., & Fund, J. (2016, November 30). Do illegal votes decide elections? Wall Street Journal. Retrieved from https://www.wsj.com/articles/ do-illegal-votes-decide-elections-1480551000 Voting operations. (n.d.). Ace Project: Electoral Knowledge Network. Retrieved from http://aceproject.org/main/english/po/poh02b02.htm Wesberry v. Sanders, 376 U.S. 1 (1964) Wilgoren, J. (2005, January 29). For Iraqi expatriates in the U.S., a chance to savor the vote. New York Times. Retrieved from http://www.nytimes. com/2005/01/29/world/middleeast/for-iraqi-expatriates-in-the-us-a-chanceto-savor-the-vote.html Williamson v. Lee Optical, Inc., 348 U.S. 483 (1955) With the Indian election round the corners, lets have a look at the chemicals in voting ink. (2014, April 11). World of Chemicals. Retrieved from https:// www.worldofchemicals.com/media/with-the-indian-election-round-thecorners-lets-have-a-look-at-the-chemicals-in-voting-ink/7076.html

28 • Spring 2018


GEORGE WYTHE REVIEW

Woolf, C. (2014, April 30). The purple finger remains a hopeful symbol in Iraq, as Iraqis go to the polls. Public Radio International. Retrieved from https:// www.pri.org/stories/2014-04-30/purple-finger-remains-hopeful-symboliraq-iraqis-go-polls Young, J. H. (Ed.). (2009). International election principles: Democracy and the rule of law. Chicago, IL: American Bar Association. Zoltan, H., Nazita, L., & Lindsay, N. (2017). Voter identification laws and the suppression of minority voters. Journal of Politics, 79(2), 363-379. Retrieved from http://www.journals.uchicago.edu/doi/10.1086/688343

Spring 2018 • 29


GEORGE WYTHE REVIEW

HOW MUCH DOES THE CORPORATE TAX ACTUALLY COST? AN ANALYSIS OF U.S. REVENUE GENERATION POLICY Christian McGuire

Abstract In the recent battle for tax reform, one of the most frequently cited concerns was lost tax revenue. Some experts claim that tax receipts will increase now that the corporate tax has been cut; others fear that the Treasury will lose billions, if not trillions, of dollars. This debate stems from a disagreement about the location of the revenue-maximizing rate, or the tax percentage that would bring in the most possible revenue. While much literature has attempted to identify a revenue-maximizing rate, few studies have meta-analyzed leading literature regarding the revenue-maximizing rate and compared it to the state of research on current U.S. effective tax rates. Effective tax rates, or taxes after deductions and credits, may be significantly lower than the technical statutory rates. This study performs a meta-analysis on existing literature to determine the average effective rate and compares this rate to the scholarly consensus on the revenue-maximizing rate to determine if corporate tax cuts will increase revenue. Assuming that these averages are likely correct, it concludes that tax cuts have little potential to increase cash flow to the U.S. Treasury. _________________________________

30 • Spring 2018


GEORGE WYTHE REVIEW

Introduction While it is not the most sensational topic, few issues excite conservative policy wonks like corporate tax reform. Experts from organizations across the spectrum of conservative thought—from the libertarian Mises Institute (Filoso, 2010) to the more mainstream conservative Heritage Foundation (Michel, 2017)—have found common cause advocating for lower corporate tax rates. At first glance, it is not difficult to see why: statutory American corporate taxes were until recently the highest in the developed world, at almost double the Organization for Economic Cooperation and Development (OECD) average (Pomerleau, 2014). If one included state taxes, the average statutory rate came out to nearly 40% in 2014 (Pomerleau, 2014), prior to the Republicans’ 2017 tax reform package. In an increasingly globalized world, high taxes may force many businesses to relocate to other countries, robbing the government of valuable tax revenue and American workers of their jobs. Conversely, slashing the tax seems like a win-win. However, left-leaning politicos are quick to point out the controversial assumptions that conservatives have made when they call for lower corporate taxation. The assumption that companies that stay will boost revenue oversimplifies a complex issue. Even if some additional businesses remain in the United States, it is not clear that their taxes will match the lost revenue from lowering rates. The only way to determine whether lowering taxes will increase revenue is through identifying the revenue-maximizing rate: a hypothetical rate of taxation that will maximize the amount of cash inflow to the United States Treasury. While this idea was most famously expressed by Art Laffer, a prominent conservative economist, the basic hypothesis is uncontroversial. If taxes are set at zero percent, then no revenue can be generated. On the other hand, if taxes are set at one hundred percent, then most official economic activity will cease, since there will be no incentive to make profits. This will also result in little-to-no tax revenue. Therefore, on the “Laffer” bell curve set in-between these two points, a revenue-maximizing point must exist (Brill & Hassett, 2007). The real disagreement between the right and the left on this issue, therefore, is where that point is located. Furthermore, even if the revenue-maximizing rate is below the current statutory corporate tax rate, lowering the tax might not increase revenue. That is because tax revenue is dependent on a different kind of tax rate: the effective rate. Effective rates measure what the taxpayer sends to the government after deductions, credits, and other loopholes (“Actual U.S. Corporate Tax Rates,” 2017). Thus, even if the previous statutory rate exceeded the revenue maximizing rate, the effective rate might average below it. If this were the case, then revenue would fall with tax cuts, not increase. The research question that this study poses is whether the effective corporate

Spring 2018 • 31


GEORGE WYTHE REVIEW

tax rate exceeded the revenue maximizing rate before the Republican tax reform. This question has significant consequence for the U.S. treasury in the wake of the 2017 tax reform. If the answer is yes, then the treasury may stand to increase its revenues in the years to come. If not, then the concerns of deficit hawks and Democrats will be vindicated. The hypothesis answers the question in the affirmative. The validity of the hypothesis will be tested through a meta-analysis of the current literature on both the effective corporate rate and the revenue maximizing rate.

Literature Review The contentious nature of the debates over corporate tax reform has resulted in a wealth of research on the topic. However, none of the literature this study reviewed gave readers a broad overview of the research on the U.S. corporate effective rate and the corporate revenue maximizing rate, despite the relatedness of these questions. Therefore, the literature can be separated into two fairly distinct groups: inquiries into the U.S. effective rate, and study of the hypothetical corporate revenuemaximizing rate. The U.S. effective rate has been studied using several different methodologies. However, a substantial body of research suggests that the effective rate is one of the highest in the world. Philip Dittmer (2011) claimed to cite no less than thirteen unique studies in his analysis of the literature, each of which concluded that the U.S. rate is nearly the highest in the developed world. Dittmer grouped these studies into three broad categories based on methodology. The first category sampled financial reports from real firms to find their average tax liability. The second created a hypothetical firm—or a set of hypothetical firms—and then subjected them to an algorithm meant to approximate the U.S. tax code. This approach can be further split into two subcategories: studies that examined the effective average tax rate (EATR) paid and those which examined the effective marginal tax rate (EMTR), or the tax paid on the final dollar of break-even investment. The final approach used IRS data to compare total firm profitability against total corporate taxes paid (Dittmer, 2011). However, as this last method is only applicable to U.S.-headquartered firms, it cannot provide data to compare effective rates outside the United States, making it useless for Dittmer’s purposes. Across these studies, results vary dramatically. The lowest estimate, which did not consider multinational corporations, calculated an effective rate of 23% using a sample of financial reports (Markle & Shackelford, 2011). Three EMTR studies put the rate between 23% and 24%: Klemm (2005), Bilicka, Devereux, and Fuest (2011), and Hassett and Mathur (2011). The highest rate was calculated by an EATR study

32 • Spring 2018


GEORGE WYTHE REVIEW

that put the tax at 34.9% (Bilicka et al., 2011).1 This finding was closely matched by an EMTR study by Chen and Mintz (2011) which estimated the rate to be 34.6%. Dittmer (2011) found the overall average of these results to be about 28%. Despite the variety of these results, it is worth noting that every single study found that the U.S. effective rate is substantially (at least 4.8 points and in one case 17.1 points) higher than the average developed country. The revenue-maximizing rate has likewise attracted significant controversy. American Enterprise Institute economists Alex Brill and Kevin Hassett (2007) used tax receipt data from the OECD countries from 1980-2005 to estimate the Laffer rate. They concluded that revenue-maximizing rates have changed over time. They found that the revenue-maximizing rate at the end of the studied period was 26%, and that the rate had been falling since the beginning of the study period as capital grew more mobile. They based their methodology largely off a study by Clausing (2007). Clausing concluded the overall revenue-maximizing rate was 33% from 1979-2002 for 36 OECD countries. While this rate did not account for changes over time, Clausing did introduce another nuance: small countries with more globalized economies were the most likely to have low revenue-maximizing rates, while large, poorly-integrated, countries had higher Laffer curves. In response to this potential concern, Brill and Hassett (2007) also conducted a regression analysis that left out outliers like Ireland, Switzerland, and Norway that might have skewed their average. However, their results remained largely unchanged. Similarly, Mintz (2007) conducted a study that focused on data from 2001-2005. He concluded that the average revenue-maximizing rate for a much larger sample of eighty countries was 28% during the study period. On the other hand, Devereux (2006) used data from 26 OECD countries since 1965 and found weak evidence of a low, 33% revenue-maximizing rate but suggested that the relationship between tax revenue and tax rates in OECD countries is nearly random. Gravelle and Hungerford (2007) noted that, if Clausing’s 33% worldwide average is specified for the large and comparatively closed U.S. economy, the revenue-maximizing rate is 57%—far above the old U.S. rate by all accounts. Gravelle and Hungerford’s own estimations put the U.S. revenue-maximizing rate rate at a whopping 75%.

1. The Bilicka study is a single report that approached the effective rate from both the EATR and EMTR perspective. Thus its results are included among the highest and lowest effective rate estimates. It is also worth pointing out that Dittmer cited the Bilicka study as “(Devereux et al., 2011)” even though Bilicka is named at the top of the report. For this reason, and to avoid confusion with the 2006 Devereux study cited elsewhere in this study, all citations here will be formatted as Bilicka, et al.

Spring 2018 • 33


GEORGE WYTHE REVIEW

Data and Methods This study’s data is drawn from the results of the research discussed in the literature review. Measurements of the effective rate will receive attention first. The literature’s conclusions will first be tabulated and numerically compared. Afterward, the methodology of each study will receive qualitative scrutiny; this portion of the investigation will determine the strengths and weaknesses of each approach. Subsequently, the study will tentatively infer the former effective rate of the U.S. The revenue-maximizing tax rate will face an identical, inductive process. After the literature is analyzed quantitatively and qualitatively, the first stage of research will be complete. The second stage of research will ascertain whether the effective rate was higher than the revenue-maximizing rate. A simple numerical comparison would theoretically suffice; however, given the widely variant state of the literature, some qualitative analysis will be necessary before any conclusions can be drawn. If the study infers that the effective rate is the higher number, then the hypothesis will be confirmed. If the revenue-maximizing rate is higher, then the null hypothesis will be confirmed.

Research Inferring the Former U.S. Corporate Effective Tax Rate

Dittmer (2011, p. 4) provided a useful table summarizing the same research provided in the literature review. It is important to note that the averages that Dittmer calculated do not weight all studies equally and do not attempt to establish any inference as to the true effective rate. For example, he cited Hassett and Mathur (2011), Bilicka et al. (2011), Markle and Shackelford (2011), and Klemm (2005) twice each. In some cases, these studies used independent methodologies to arrive at different, but universally applicable numbers. Bilicka et al. is one such case. In such cases, it is perhaps wise to treat the two conclusions as the results of two independent studies. However, not all of the literature meets this standard. Markle and Shackelford (2011) applied the same methodology to both multinational and domestic corporations, but Dittmer treated their results for the two types of businesses as separate.2 Therefore, while Dittmer’s chart may serve as a preliminary tabulation, some qualitative analysis is clearly necessary. 2. Markle and Shackelford (2011) found that multinational corporations pay a significantly higher sum, undercutting the popular narrative that multinational corporations hide away profits in obscure tax havens and pay less than their domestic rivals.

34 • Spring 2018


GEORGE WYTHE REVIEW

Figure 1. Effective corporate income tax rates across nations, by study (Dittmer, 2011). The studies’ particular definitions of “firm” also matter a great deal. As one can see from the table above, not all studies examine the same facet of corporate taxation in America. In fact, some of the outliers do not attempt to examine effective corporate taxes as a whole. Hassett and Mathur (2011) and Klemm (2005), studies with unusually low EMTR results, only examined manufacturing investments. Markle and Shackelford (2011) also offered no clear formula for weighting their two results, since their conclusions ought not count as separate methodologies or studies. If these studies are removed from the average, the effective rate estimate rises to 29.4%. Of course, the level of uncertainty in these results and the qualitative factors at play make such a precise measure almost meaningless. However, an average effective rate somewhere in the high twenties or low thirties seems entirely reasonable, given the data. Figure 2 gives a cursory summary of the findings described in the literature review. Once again, however, the listed average does not weight all studies equally or account for important differences in methodology. In two cases—Brill and Hassett (2007) and Clausing (2007)—the same study is cited twice, even

Spring 2018 • 35


GEORGE WYTHE REVIEW

though only one independent methodology was used. Given Brill and Hassett’s stated emphasis on the importance of time in calculating revenue-maximizing rates, it seems judicious to pick their estimate of the rate at the end of the study period, rather than an overall average. Similarly, since Clausing herself makes a point of observing that revenue-maximizing rates differ from country to country, her global average of 33% seems less useful than the U.S. specifications made by Gravelle and Hungerford (2007). Once these issues are resolved, the average revenue-maximizing rate shifts upward to 43.8%. Interestingly, this number is more than ten points above the median revenue-maximizing rate, which remains constant at 33%. This is dissimilar from the effective rate calculations, which reached a manageable 1.2% difference between the median and mean. However, given the much wider range of research conclusions on the revenue-maximizing rate—with a 49-point gap between the lowest and highest estimate, rather than the effective rate’s 11-point gap—divergence between the mean and median is unsurprising.

Figure 2. Revenue maximizing rates, by study. Given the state of the literature, it is extremely difficult to infer a revenuemaximizing rate for the U.S. corporate tax. Perhaps Devereux (2006) was correct; other economic factors could so outweigh corporate tax considerations that no calculable revenue-maximizing rate exists. If one insists on a number, a rate in the thirties or mid-to-low forties seems most probable. However, it goes without saying that the average and median arrived at in this study are far too imprecise for the purposes of policy-making.

36 • Spring 2018


GEORGE WYTHE REVIEW

Comparing Effective and Revenue-Maximizing Rates

At this point in the study, it is important to address a topic that has been largely ignored thus far. Some of the studies research which statutory rates maximize revenue, not which effective rates maximize revenue. Devereux (2006), Clausing (2007), and Brill and Hassett (2007) adopt this approach. One cannot help but wonder if the state of the literature on revenue-maximizing rates would be clearer if more focus was given to effective rates, which are economically far more consequential than statutory rates. At first, this might seem like a crucial obstacle to this study. However, the same studies which use statutory rates also largely rely on international data to calculate their Laffer curve. Furthermore, most of the data from these studies comes from the 1980s onward. This significantly mitigates the original problem, since most other developed countries ditched the United States’ byzantine approach to corporate taxation in the 1980s in favor of a streamlined code with few exceptions (Solman, 2017). In other words, internationally, statutory rates are the effective rates. Therefore, it is not nearly as problematic to compare U.S. effective rates with the revenue-maximizing rates derived by these studies as one might imagine. This is even the case for the modified Clausing (2007) conclusions, since the original rate is calculated using international data and is only then modified by Gravelle and Hungerford (2007) to account for U.S. particularities. With that issue addressed, this study turns its attention to comparing the results of the two previous research sub-sections. The likelihood that the U.S. effective rate exceeded the revenue-maximizing rate is small. To be sure, it is possible to assemble such a case. If we assume that Bilicka et al. (2011) correctly estimated the effective rate (about 35%) and that Brill and Hassett (2007) correctly estimated the revenuemaximizing rate (about 25%), then the recent tax cut could boost revenue. However, while Brill and Hassett certainly believe this, it cannot be reached without cherrypicking. The range for both numbers identified in this study, while large, is not so large as to present a hope that the U.S. was on the “right side of the Laffer curve” until recently. With that said, three nuances must be introduced. First, Devereux (2006) could be right; there might not be any real semblance of a Laffer curve with respect to corporate taxes. This would certainly explain the failure of the literature to come to any consensus. If so, then attempts to predict revenue based on tax rates are inherently wrong-headed. Second, as Brill and Hassett (2007) noted, it seems probable that the revenuemaximizing rate—if it exists at all has lowered over time as capital becomes more mobile. Furthermore, most of the data used to estimate the U.S. corporate Laffer curve is more than a decade old. Therefore, it is possible that the revenue-maximizing

Spring 2018 • 37


GEORGE WYTHE REVIEW

rate has dived below the effective rate in the last decade. If so, the recent tax cuts were well-timed. Finally, without Gravelle and Hungerford (2007), the results of this study would be rather different. There is no reason to discard their results; they are qualified economists who offered helpful insights for this study. However, without their conclusions and the modifications they made to Clausing (2007), the average revenue-maximizing rate would drop to 30%. A confirmation of the hypothesis would be, if not likely, at least quite plausible in this scenario.

Conclusion The next several years will doubtless prove instructive to economists and political scientists alike. The results of the Republican tax plan will be watched with fascination. However, based upon the literature available, the null hypothesis should be accepted. The question, it seems, is not if corporate tax reform will cost the Treasury, but how much. That is not to say there is no reason for conservatives to cheer for corporate tax reform. It is possible that increases in investment, jobs, wages, and productivity will make up for the increased deficit. Perhaps GDP will even grow in comparison to the debt, resulting in a more stable fiscal situation. After all, as noted by Dittmer (2011), the United States was almost surely one of the most afflicted countries in the world as measured by its corporate tax rate. It seems unlikely that this will be the case after the Republican reforms. Deficit hawks and Democrats, however, have reason to grieve. Despite their severe legislative defeat, it seems that their concerns were legitimate. Furthermore, efforts to curb the growing debt through spending cuts face heavy political opposition. There is little chance that the country’s growing fiscal gap will narrow in the foreseeable future. Tax cuts and spending increases pull in opposite directions, but both are nearly impossible to undo.

38 • Spring 2018


GEORGE WYTHE REVIEW

Reference List Actual U.S. corporate tax rates are in line with comparable countries. (2017). Center for Budget and Policy Priorities. Retrieved from https://www.cbpp. org/research/federal-tax/actual-us-corporate-tax-rates-are-in-line-withcomparable-countries Bilicka, K., Devereux, M. P., & Fuest, C. (2011). G20 corporate tax ranking, 2011. Oxford University Centre for Business Taxation. Retrieved from http://eureka. sbs.ox.ac.uk/3512/1/G20_Corporate_Tax_Ranking_2011.pdf Brill, A., & Hassett, K. (2007). Revenue-maximizing corporate income taxes: The Laffer curve in OECD countries. American Enterprise Institute. Retrieved from https://www.aei.org/wp-content/uploads/2011/10/20070731_ Corplaffer7_31_07.pdf Chen, D., & Mintz, J. (2011). New estimates of effective corporate tax rates on business investment. Cato Institute. Retrieved from https://www.cato.org/ blog/new-estimates-corporate-tax-rates Clausing, K. A. (2007). Corporate tax revenues in OECD countries. International Tax and Public Finance, 14(2), 115-133. Retrieved from https://link.springer. com/article/10.1007/s10797-006-7983-2 Devereux, M. (2006). Developments in the taxation of corporate profit in the OECD since 1965: Rates, bases, and revenues. Oxford University Centre for Business Taxation. Retrieved from https://ideas.repec.org/p/btx/ wpaper/0704.html Dittmer, P. (2011). U.S. corporations suffer high effective tax rates by international standards. Tax Foundation. Retrieved from https://files. taxfoundation.org/legacy/docs/sr195.pdf Filoso, V. (2010). The corporate income tax: An entrepreneurial perspective. Quarterly Journal of Austrian Economics, 13(1), 99-123. Retrieved from https://mises.org/system/tdf/qjae13_1_5.pdf?file=1&type=document Gravelle, J., & Hungerford, T. (2007). Corporate tax reform: Issues for Congress (CRS Report No. RL34229). Congressional Research Service. Retrieved from

Spring 2018 • 39


GEORGE WYTHE REVIEW

https://digital.library.unt.edu/ark:/67531/metadc743616/m1/1/high_res_d/ RL34229_2007Oct31.pdf Hassett, K., & Mathur, A. (2011). Report card on effective corporate tax rates: United States gets an F. American Enterprise Institute. Retrieved from http:// www.aei.org/publication/report-card-on-effective-corporate-tax-rates/ Klemm, A. (2005). Corporate tax rate data [Data set]. Institute for Fiscal Studies. Retrieved from https://www.ifs.org.uk/publications/3210 Markle, K., & Shackelford, D. (2011). Cross-country comparisons of corporate income taxes (Working paper No. 16839). Cambridge, MA: National Bureau of Economic Research. Retrieved from http://www.nber.org/papers/w16839. pdf Michel, A. (2017). The high price that American workers pay for corporate taxes. Heritage Foundation. Retrieved from https://www.heritage.org/taxes/report/ the-high-price-american-workers-pay-corporate-taxes Mintz, J. (2007). 2007 tax competitiveness report: A call for comprehensive tax reform. C. D. Howe Institute. Retrieved from https://www.cdhowe.org/sites/ default/files/attachments/research_papers/mixed/commentary_254.pdf Pomerleau, K. (2014). The U.S. has the highest corporate income tax rate in the OECD. Tax Foundation. Retrieved from https://taxfoundation.org/us-hashighest-corporate-income-tax-rate-oecd/ Solman, P. (2017, April 13). What other countries can teach America about taxes. PBS News. Retrieved from https://www.pbs.org/newshour/economy/ countries-can-teach-america-taxes

40 • Spring 2018


GEORGE WYTHE REVIEW

AN UNDERESTIMATED POWER: WOMEN IN TERRORIST ORGANIZATIONS Julia Tomaszewski Abstract The role of women in terrorist organizations has long been underestimated. Recently, female terrorist activity has been growing, in large part due to the development of online recruitment. Depending on the organization, women may either play a supporting or active role in terrorist activities. If they play an active role, women can have a significant advantage over men. Women are presumed to be less suspect and receive much more media attention when they are involved in an attack. They often share the same motives as men, including religious drive and belief in the cause. Women are also more likely to be motivated by revenge for loved ones, a desire to redeem themselves from dishonor, or a desire to gain respect in a culture that treats them like second-class citizens. This study suggests that since women are a powerful and underestimated force in terrorism, successful counterterror initiatives must account for female influence when combatting violent Islamic extremism. ___________________________________

Spring 2018 • 41


GEORGE WYTHE REVIEW

Introduction June 26, 2014 began like any other day for the Halanes, a Muslim family who lived in a suburb of Manchester, United Kingdom. However, it quickly turned into a panic as they realized that their two daughters—sixteen-year-old twins Salma and Zahra—were missing. After reporting their absence and a brief search, counterterror officials in Britain revealed that the girls had boarded a flight for Istanbul, traveled south across the border into Syria, and joined Islamic militants (McCoy, 2014). This was not the first time something like this had happened in the family. The year before, the twins’ older brother had done the same thing. Whether he had influenced his sisters or whether they had come into contact with other recruiters online is unknown. Once the girls arrived in Syria, both were immediately married as “jihadi brides.” Later, they reported that both of their husbands had been “martyred” in battle. Broken-hearted, their mother made an unprecedented trip to Syria to try to persuade them to come back, but they refused. Their mother was briefly held captive by the terrorists before being released to return to England (Britton, 2017). The twins have since posted numerous times on their Twitter accounts, celebrating successful acts of terrorism, showing approval for mass murders by terrorists, and demonstrating with photos how they and many other radicalized women were learning to use firearms. One woman, the wife of a jihadi who lived with one of the sisters before escaping to Syria, also revealed that the sisters served as terrorist recruiters online and had successfully convinced several individuals to join them in their fight for Islamic domination (Britton, 2017). It is difficult to understand how these circumstances came about. Both girls had bright futures ahead of them. They were ranked top of their class at their private, all-female school in Manchester and were on the career path to become successful doctors. Their family was very religious but decidedly against any kind of religious violence. Yet this example is not an isolated incident, unusual as it may seem. It is becoming increasingly common for people to leave everything, including their homes, families, and stable careers to join Islamic militants in Syria and other Middle Eastern countries. Why is this happening? What is the draw? What would pull people from the environment they know into a life of hate and violence? This study explores these questions, specifically as it pertains to women. Women are an increasingly involved and powerful, yet underestimated, tool of Islamic terrorist operations. This study examines the process of recruitment, radicalization, and involvement of women in organizations like ISIS, Hamas, and Al Qaeda. Oftentimes, the process and motivations are similar, if not identical, to those of men joining similar terrorist operations. Interestingly, these groups are openly misogynistic and discriminatory in their practice and ideology, yet they still attract

42 • Spring 2018


GEORGE WYTHE REVIEW

female recruits. Thus, this study also examines the tactics used in the recruitment of women. It seeks to uncover how females are convinced to join radical organizations that treat them as second-class individuals. In addition, it analyzes the roles that women fill in these organizations, which may or may not be different from those that men fill depending on the specific terrorist group. Finally, this study proposes ways in which women can also be a strong force in helping to eliminate extremism. Females have an especially powerful influence in their communities despite the lack of value their culture ascribes to them.

Literature Review Oftentimes it is presumed that terrorists are male, but recent literature challenges that assumption. While there are still statistically more active male terrorists, there has been a rise in female involvement and recruitment. Depending on the terrorist group, women can play either an active or supporting role and are recruited in many different ways (“The Role of Women,” n.d.). Hilton (2014) found that lately, due to the prevalence of social media, online platforms have been used as the primary means for recruiting new members. Frequently, this is done by painting unrealistic pictures of life with a militant group. Recruiters also persuade based on religious arguments and passages from the Qur’an that call for jihad and the death of those who oppose Islam (Hilton, 2014). At the same time, there is a misconception that people only join such causes because they are drawn in under false pretenses or arguments. However, Sawicki (2016) found that many who are involved in these activities are not necessarily coerced. They are also personally motivated by several factors. First, some Muslims have religious motivation, believing that they are called to wage jihad (religious war) on those who are not Islamic. They believe that dying through jihad also brings glory, honor, and a way into Paradise. Likewise, MiltonEdwards and Attia (2017) argued that, for some women, it is a matter of genuinely believing in the cause of Islam and the way of jihad. Second, it can also be a way of seeking revenge for loved ones who have died at the hands of those opposing radical groups (Zheng, 2017). Women especially might feel an emotional drive to take such action or to preemptively take action to protect the loved ones that could be harmed in warfare. They wish to not only protect their communities, but to promote community—something Muslim women can often feel a lack of. To these women, this ensures that there will be a safe environment for them and their children into the future. Moreover, Goldman (2012) found that because many Islamic societies treat women with lower regard than men, women living in those cultures see working with a terrorist organization as a way to earn personal respect or honor that cannot be earned in any other way. Additionally, it

Spring 2018 • 43


GEORGE WYTHE REVIEW

can be a way to earn respect for their gender as a whole by proving that women can have an impact and contribute to religious warfare (Alarid, 2016). However, this is only possible in some terrorist organizations, as other terrorist organizations relegate women entirely to the domestic sphere. Goldman (2012) also found disturbing evidence showing that, on multiple occasions, there have been organized, large-scale operations to rape Islamic women. In Islamic culture, this is dishonoring to both a woman and her family. It eliminates the woman’s value and makes her ineligible to be married. Since the primary role of women in these societies is to marry and raise children, raping women means that they no longer have a purpose or a place in society. Thus by raping women, terrorists create soldiers whose only possible purpose can be executing suicide missions that will promote the cause of their religious war. By going on suicide missions, violated women can not only serve a purpose but can also regain some degree of honor by dying for their religion. There are documented cases where women have joined radical organizations simply so they can die fighting and regain their personal honor (Haynes, 2009). Female fighters do this despite the fact that it was members of these same groups that stole their dignity from them.

Research Why Study Women Terrorists?

Female involvement in terrorist attacks and radical groups is becoming increasingly common. The French Interior Ministry recently noted that 40% of French recruits to ISIS are now female, whereas in the past it had been predominantly men (Zheng, 2017). In 2016, at least sixty women left the UK to join ISIS, but there are likely more that were undocumented (Zheng, 2017). Depending on the organization, women may be allowed to take an active role or may be limited to supporting roles. The issue is debated, as the Qur’an is not explicit regarding what kind of involvement is appropriate for women (Cragin & Daly, 2009). For example, Hamas welcomes all women and allows them to have similar positions as men (except they can have fewer leadership positions) whereas Al Qaeda believes that women’s roles are strictly domestic (“The Role of Women,” n.d.). ISIS has been increasingly accepting of women. However, nearly all groups grant that women who give their lives for jihad have the ability to enter paradise just as men do. Those who are recruited for “passive” roles are generally only given a role in the home, which means supporting their husbands, giving birth to children, and raising the next generation to fight for Islam. In other words, these organizations require women to essentially be the support mechanisms for the males and the means of

44 • Spring 2018


GEORGE WYTHE REVIEW

continuing their warfare into the future. Giving birth to males is a priority since females are oftentimes seen as a disappointment because they do not have the same war-waging capabilities as men (Hilton, 2014). Women who are allowed to take an active role have some clear advantages over men in the field. Zheng (2017) listed three reasons for this. First, counterterror measures are most often designed to combat a prototypical male terrorist. Thus, female terrorists are less likely to be detected through common counterterror measures. Their manner of dress also allows them to easily conceal weapons or other goods. For example, women have been known to strap explosives around their waist in a way that makes it appear that they are pregnant (Sperry, 2017). In addition, since they are generally not presumed to be terrorists, females can more easily gather and transfer information to aid in planning terrorist attacks. They also often invoke the sympathy of society, which aids them in performing tasks and avoiding repercussions (Cragin & Daly, 2009). In some terrorist organizations, women are allowed to perform the same jobs as men: political representatives, operational leaders, logisticians, recruiters, mission operatives, suicide bombers, couriers, decoys, smugglers (of weapons primarily), and medical assistants (Cragin & Daly, 2009). While they do not have an overall advantage in all of these areas, the advantages that they do carry are extremely valuable.

The First Steps: Radicalization and Recruitment Radicalized men and women alike often feel despair, humiliation, and outrage over injustice and perceive few options for influencing change. One brief moment of intense emotion evoked in them while they watch a YouTube video of innocent victims in Africa or the Middle East can be all it takes to spark their interest. Once someone is mobilized, next steps vary. (Alarid, 2016, para. 6-7) This quotation comes from a publication by the National Defense University’s Journal of Complex Operations, PRISM, discussing the increased use of social media for recruitment and radicalization. Radicalization is defined as “the process of supporting or engaging in activities deemed (by others) as in violation of important social norms (e.g. the killing of civilians)” (Kruglanski et al., 2014, p. 69). Thus, it is a matter of degree “in which mere attitudinal support for violence reflects a lower degree of radicalization than actual engagement in violence,” and it “represents a subjective judgement proffered by those for whom the violated norms seem important but not by those who have devalued or suppressed the norms in question” (Kruglanski et al., 2014, p. 69). Therefore, there are lower and higher degrees of

Spring 2018 • 45


GEORGE WYTHE REVIEW

radicalization. There are distinctions between women who support, women who join, and women who become involved in terrorist organizations (Milton-Edwards & Attia, 2017). Due to the rise of the internet, recruitment is now primarily done online. Online recruitment is popular for multiple reasons: first, it has the ability to reach a high volume and diversity (both demographically and geographically) of people; second, it is significantly less risky than more traditional means of recruitment; third, the costs are comparatively minimal; fourth, there are less logistics to be worked out between correspondents; and finally, the odds of detection are much lower (Alarid, 2016). The online recruitment method has almost led to the eradication of other means, such as person to person interaction and correspondence. For this reason, the following research applies almost exclusively to the online method of recruitment. In some instances, people may seek out a recruiter or someone with the right connections to get them onto the path of radical Islam, but recruiters also have many ways to reach out to people they see as candidates for their cause. As researcher Maeghin Alarid (2016) wrote: The internet makes it easy to be found. A candidate for recruitment may come to the group’s attention by making a financial donation, downloading extremist propaganda, entering a jihadi chat room, or visiting radical pages on Facebook. In today’s environment, we see numerous examples of the radicalization process, from interest to recruitment, through execution or an actual mission, happening entirely online. (para. 7) ISIS is especially known for actively recruiting women and girls online (Hilton, 2014). Online recruiters try to make the jihadist family and lifestyle appeal to women over social media. Referencing female recruitment, Dettmer (2014) commented: The propaganda usually eschews the gore and barbaric images often included in the general fare of jihadist online posts, such as the beheadings last month of dozens of Syrian army soldiers after a base was overrun in the northern Syrian province of Raqqa. Instead, the marketing focuses on what one analyst calls the “private sphere,” concentrating on the joys of jihadist family life and the “honor” of raising new fighters for Islam. The online recruiters stress the pleasure of providing the domesticity that a warrior waging jihad needs and by doing so to serve Islam. (para. 4-5) This aligns more with the idea of serving in a supporting role, as does the following excerpt taken from a post by an online female recruiter. She urged women

46 • Spring 2018


GEORGE WYTHE REVIEW

to abandon their old lives and migrate to a place where they could directly serve their god and religion: Biggest tip to sisters: don’t take detours, take the quickest route, don’t play around with the Hijrah [religious migration] by staying longer than [one] day for safety and get in touch with your contacts as soon as you reach your destination. Even if you know how right this path and decision is and how your love for Allah comes before anything and everything, this is still an ache which only one [who] has been through and experienced it can understand. The first phone call you make once you cross the borders is one of the most difficult things you will ever have to do… when you hear them sob and beg like crazy on the phone for you to come back it’s so hard...Many people in present day do not understand…why a female would choose to make this decision. They will point fingers and say behind your back and to your families’ faces that you are taking part in...sexual jihad. (Hilton, 2014, para. 7-8). Despite these attempts at persuasive appeals, it is difficult to understand why someone would see these descriptions as desirable. Sperry (2017) commented, “It seems unfathomable to most of us that a female would want to join ISIS, but their online propaganda has a major focus on twisting the concept of women’s rights. You’ll see pictures of fully covered women with guns, as if they are treated as equals in jihad” (para. 25). In other words, to persuade women to join the cause, recruiters try to twist the truth and paint an unrealistic picture of what kind of lifestyle women may expect to enjoy under a radical Islamic regime. Women are looking for an opportunity to be appreciated for who they are, to contribute to society in the same ways that men can, and to have basic human rights and treatment. The false promises of Islamic terrorism can draw them in and persuade them to commit horrific acts. In their mind, terrorism is the only thing that will grant them the recognition that they deserve as human beings. It is important to note that, in most cases, online recruitment usually includes detailed references to the Qur’an as the basis for why people should wage jihad. Because of this, those who are dedicated to Islam feel pressure to join terrorist groups in order to follow their holy book, fulfill their duty, and earn a place in Paradise. (Sperry, 2017). In this way, recruiting is sometimes effective because of a prospective fighter’s dedication to Allah, not because online recruiters are particularly persuasive.

Motivation: Introduction

Many of the factors that motivate men to join groups like ISIS or Al Qaeda also motivate women (Milton-Edwards & Attia, 2017). There are also motivations unique

Spring 2018 • 47


GEORGE WYTHE REVIEW

to women. One motivation that has frequently been presumed is the romanticized idea of being married to a terrorist, but experts in the field usually discount this argument. Instead, they point to a number of other motivations (Zheng, 2017). Female jihadists are not simply desperate individuals who are looking for a way to support themselves, a way to spend their lives usefully, or a pathway to fame, as evidenced by Zahra and Salma Halane and countless others. Some people have a bright future ahead of them and still choose this path because they are motivated by powerful factors. Several of the main categories of motivating factors are discussed below.

Motivation 1: Ideology and Religion

Just as with men, a dedication to a cause of the Islamic religion is one of the motivating factors for women to join terrorist organizations. Sawicki (2016) noted, “Some might view suicide terrorism as a cowardly act, but it is one that requires substantial presence of mind from the bomber. Women are seen as second-tier citizens in many societies [but] performing such extreme violence is a signal act of commitment and can have a riveting effect on the male fighters” (para. 20). Women also have a desire to show their commitment to a cause and to their male counterparts by committing acts of terror. As mentioned previously, it is almost universally agreed upon in different Muslim terrorist groups that women have the potential to reach Paradise by giving their life for jihad. Hence, in that regard, they share the same motivation as men. One boy from Chicago, who ran away to join ISIS, left a note saying that he could no longer bear to live in “[t]he land whose people mock my Allah, my beloved prophet, the commandments of Allah, [and] his law. The ones who are using my money to kill my brothers and sisters" (Sperry, 2017, para. 33). This suggests that many people who join are motivated by true religious fervor, and this is not unique to men or women.

Motivation 2: Revenge and Community

On September 11, 2016, three Kenyan women attacked a police station in Nairobi, claiming that they were taking revenge for the poor treatment of Muslims in Mombasa (Zheng, 2017). Putting the irony of terrorism in response to poor treatment of people aside, this points to another strong motivator for women. Whether it comes from some innate sense of protection for those close to them, a naturally empathetic and compassionate personality, or some other factor, women may also ascribe their terrorist acts to revenge. In addition, female attacks can often be a response to personal tragedy, such as the death of a loved one who was killed in combat. Finally, terrorist strikes can be a response to those who have occupied a

48 • Spring 2018


GEORGE WYTHE REVIEW

woman’s town, country, or homeland (Sawicki, 2016). Not only can terrorism be a way of protecting one’s community, joining a terrorist group can be a way of finding community. Zheng (2017) wrote that “Muslim women in Europe feel isolated due to difficult childhoods and rising anti-Muslim sentiment, and may be drawn to ISIS by the sense of sisterhood and community conveyed in social media posts by other female recruits” (Zheng, 2017, para. 4). In finding community, females can discover a place where they are accepted, even if they are still not valued for themselves but for their use.

Motivation 3: Personal Recognition or Profit

Though less common, there is evidence stating that ISIS sometimes grants stipends to women who are willing to join and birth and raise children to become the next generation of jihadis. One woman from England reportedly receives 25 USD per month for every child she has, a 400 USD maternity bonus, and a 500 USD marriage bonus (Sperry, 2017). This is supposedly not a unique situation, though at the same time, it appears that terrorists are able to attract the recruits that they need without such offers. It can be a means of personal financial gain, but more often, if motivated by personal benefit, it is because a woman can earn honor and respect by giving her life to jihad. People enjoy the idea of being a part of something bigger than themselves, and in some cases, jihad is the only way that women can feel like they are a part of something that is more useful on a larger scale than merely their own households. They can receive an elevated status from joining, that cannot be earned in any other way. Additionally, Sawicki (2016) wrote that jihad is even a means of gaining celebrity status: “Suicide bomber attacks are recorded, memorialized and posted on the internet as recruiting tools. There is a daredevil, exciting aspect to the attacks that appeals to some individuals looking for a way out of their lives and into notoriety” (para. 22). Islamic societies do not allow women many opportunities to prove their worth or be appreciated apart from their utility (i.e. their ability to bear children and keep a household). Because of this, they can sometimes be desperate for opportunities to prove that their personal worth. Becoming involved in terrorist activity gives women the ability to showcase their value (Goldman, 2012). Apart from personal recognition, women have the opportunity to gain respect for their sex as a whole through waging jihad. Alarid (2016) wrote, “The possibility also exists that despite the terrible oppression of women in many terrorist groups, women join to prove the worth of their gender in the hope of making strides toward women’s rights” (para. 46). Women who join terrorist organizations not only battle their enemies but subtly wage war on the patriarchal societies in which they live, dramatically elevating their sex’s status in society (Sawicki, 2016).

Spring 2018 • 49


GEORGE WYTHE REVIEW

Motivation 4: To Be Saved From Dishonor

It is well-documented that women have sometimes become involved in terrorist activities to save themselves from dishonor. As horrific as it seems, several recruiters unashamedly admit to purposely organizing mass rapes as a means of recruiting women as suicide bombers. Since a woman and her family is considered dishonored if she is raped, some women believe that their only hope for redemption is through martyrdom. As such, women who have been raped and are deemed “dishonorable” are the ideal targets for recruiters searching for those willing to die for an “honorable” cause. In one such instance, a member of Ansar Al-Sunnah, named Samira Ahmed Jassim, organized the rape of eighty women so that they could be recruited as suicide bombers. The group did this because they had a shortage of those willing to undertake suicide missions (Goldman, 2012). Their plan was executed successfully, and to date, thirty-two of the eighty women who were a part of that tragedy have gone on to launch attacks. This sends the message that these women “are more valuable to their societies dead than alive and disgraced” (Goldman, 2012, para. 7). This mindset is unacceptable yet prevalent. Radical Islamic society can be quick to excuse men for brutish and unacceptable behavior, yet ready to disgrace women for circumstances beyond their control. This wide employment of rape destroys women and girls psychologically, emotionally, socially, and eventually physically. Unfortunately, it is highly effective and compels women to give their lives so they can reclaim their honor (Sawicki, 2016). Sadly, terrorists in power know how to use social influence to destroy those around them. The pressure of society in Muslim communities is generally so strong that innocent women and children become easy prey.

Involvement

As previously discussed, involvement for women varies entirely on the group that they join and how the organization views the role of women. However, women sometimes are allowed to be involved in specially delegated ways, though not in the way that the Islamic groups would like to deceive people into thinking. For example, ISIS has created an exclusively female brigade, named al-Khansaa. The sole task of this brigade is to enforce the ISIS interpretation of Islamic law among other women in the Syrian city of Raqqa and to ensure that they are complying with all the regulations and rules (Zheng, 2017). They still have no power over men, but they have some of the same power as their male counterparts over the females in their region. This brigade “allows ISIS to lure in young women by characterizing recruits as strong and independent with ‘jihadi girl power,’ in opposition to the oppressed Muslim women stereotype” (Zheng, 2017, para. 5).

50 • Spring 2018


GEORGE WYTHE REVIEW

There is an odd paradox where women are devalued by Islamic societies yet, can be highly sought after their usefulness in warfare. Female recruits have symbolic rather than numerical impact for the most part, given that there still are many more men involved in terrorist groups (Milton-Edwards & Attia, 2017). Terrorism is about getting attention, making a point, and causing people to fear, which is accomplished by broadcasting terrorist acts. Statistics show that media attention for attacks conducted by women is about four times that of men. Thus, women can be extremely useful, not only in actually carrying out attacks,but also in gaining the attention that terrorists are looking for (Sawicki, 2016).

Prevention

Alarid (2016) argued that an effective strategy for countering female radicalization must include several elements. First, leaders should discourage people from propagating extremist messages online by cracking down on radical websites and prosecuting the owners. Second, internet forums should self-police by vetting material that is posted to their pages and creating mechanisms by which members can report suspicious activity. Third, government should promote a larger “counter message” online, advocating for women’s rights and promoting outlets that teach that Islam is a religion of peace and nonviolence. This could also involve using social media to directly counter the social media tactics of terrorists, debunking the false claims of propaganda. As is evident from this analysis, recruiters’ online presence and the influence of social media is at the root of the problem.

Conclusion While there has been an alarming trend in increased participation by women in groups such as ISIS and Hamas, most counterterror plans focus on males and their activity. As a result, women are more likely avoid detection than their male counterparts. Thus, the United States and other democratic nations need to adopt policies that are not gender-biased or specific. Counterterror plans need to include women in their analysis along with men. At the same time, while women have proved that they can be a deadly force and do significant damage, some claim that they may also be a key component to ending (or at least reducing) radical terrorism as it is seen today. Women are seen as lesser members of society in many Muslim communities, and thus, are seen as mostly useful for staying home and raising a family—more specifically, new children who will be the next generation of jihad warriors. But even though they are given this job because they supposedly have less value, mothering is one of the most significant and influential tasks in their society. Children are heavily influenced by the environment that they grow up in. Women have the opportunity to be one of the

Spring 2018 • 51


GEORGE WYTHE REVIEW

primary influences in the lives of their children who will become the next generation of fighters—or perhaps the first generation to seek peace. Additionally, women are first-hand witnesses to the process and people who will potentially become the next generation of terrorists (Alarid, 2016). This gives them insight and a unique perspective. It also gives them an incredible knowledge of what is going on at an individual or communal level. Thus, women are both an excellent knowledge base and primary influencers in their communities. The radical Islamic agenda cannot continue without the cooperation and support of the females in their society. For this reason, women may be the best tool available for countering Islamic extremism.

52 • Spring 2018


GEORGE WYTHE REVIEW

Reference List Alarid, M. (2016). Recruitment and radicalization: The role of social media and new technology. PRISM. Retrieved from http://cco.ndu.edu/News/ Article/780274/chapter-13-recruitment-and-radicalization-the-role-ofsocial-media-and-new-tech/ Britton, P. (2017, July 30). Mum describes her life living in fear in Syria with ‘terror twins’ who fled Chorlton. Manchester Evening News. Retrieved from http://www.manchestereveningnews.co.uk/news/greater-manchester-news/ mum-describes-life-living-fear-13408066 Cragin, R. K., & Daly, S. A. (2009). Women as terrorists: Mothers, recruiters, and martyrs. Southeast Asia Regional Centre for Counter-Terrorism. Retrieved from http://www.searcct.gov.my/publications/our-publications?id=57 Dettmer, J. (2014, August 6). The ISIS online campaign luring western girls to jihad. Daily Beast. Retrieved from https://www.thedailybeast.com/the-isisonline-campaign-luring-western-girls-to-jihad Goldman, S. (2012). Leading terrorism expert discusses mobilization of women into terrorist networks. National Consortium for the Study of Terrorism and Responses to Terrorism. Retrieved from http://www.start.umd.edu/news/ leading-terrorism-expert-discusses-mobilization-women-terrorist-networks Haynes, D. (2009, February 3). ‘Female suicide bomb recruiter’ Samira Ahmed Jassim captured. The Times. Retrieved from https://www.thetimes.co.uk/ article/female-suicide-bomb-recruiter-samira-ahmed-jassim-capturedt3st0qn7j6q Hilton, E. (2014). Isis actively ‘recruits’ girls and women online. Acton Institute. Retrieved from http://blog.acton.org/archives/71327-isis-actively-recruitsgirls-women-online.html Kruglanski, A. W., Gelfand, M. J., Bélanger, J. J., Sheveland, A., Hetiarachchi, M., & Gunaratna, R. (2014). The psychology of radicalization and deradicalization: How significance quest impacts violent extremism. Advances in Political Psychology, 35(1). Retrieved from http://gelfand.umd. edu/KruglanskiGelfand(2014).pdf

Spring 2018 • 53


GEORGE WYTHE REVIEW

McCoy, T. (2014, July 11). The 16-year-old twin girls who fled their home in the middle of the night and flew into Syria. Washington Post. Retrieved from https://www.washingtonpost.com/news/morning-mix/wp/2014/07/11/the16-year-old-twin-girls-who-fled-their-home-in-the-middle-of-the-nightand-flew-to-syria/?utm_term=.203028f9bb3d Milton-Edwards, B., & Attia, S. (2017). Female terrorists and their role in jihadi groups. Brookings Institute. Retrieved from https://www.brookings.edu/ opinions/female-terrorists-and-their-role-in-jihadi-groups/ The role of women in Jihad. (n.d.). INSITE on Terrorism. Retrieved from http:// news.siteintelgroup.com/blog/index.php/about-us/21-jihad/41-feb09sp-102064454 Sawicki, J. (2016). Why terrorists use female and child suicide bombers. Catholic Health Association of the United States. Retrieved from https://www.chausa. org/publications/health-progress/article/july-august-2016/why-terroristsuse-female-and-child-suicide-bombers Sperry, P. (2017, May 13). Meet the American women who are flocking to join ISIS. New York Post. Retrieved from https://nypost.com/2017/05/13/meetthe-western-women-who-are-flocking-to-join-isis/ Zheng, C. (2017). Women in ISIS: The rise of female jihadists. Harvard Political Review. Retrieved from http://harvardpolitics.com/world/women-isis-risefemale-jihadists/edu/KruglanskiGelfand(2014).pdf

54 • Spring 2018


GEORGE WYTHE REVIEW

RESOLVING THE DISPUTE OVER DISPUTE RESOLUTION: ALTERNATIVE DISPUTE RESOLUTION IN FEDERAL AGENCIES Daniel Thetford Abstract Since 1990, every federal agency in the United States has utilized alternative dispute resolution (ADR) to some degree and with varying levels of effectiveness. Federal agencies have used ADR to resolve a broad variety of disputes in a wide variety of environments. ADR has three primary advantages over traditional dispute resolution: resource effectiveness, flexibility, and better results for conflicting parties through win-win compromises. The purpose of this study is to determine to what extent these advantages exist in the data from the last twenty-seven years of ADR use in federal agencies. This paper will analyze the quantitative questions of the cost and time effectiveness of ADR, as well as two qualitative questions: how effectively does ADR approach the vast diversity of disputes in and between federal agencies, and how effectively does ADR provide win-win results to conflicting parties. With the data gathered from these inquiries, this study attempts to answer the larger research question of whether alternative dispute resolution is effective in US federal agencies? All three categories of measurement indicate that ADR is in fact more effective than traditional dispute resolution in employment disputes. ___________________________________

Spring 2018 • 55


GEORGE WYTHE REVIEW

Introduction Two mothers, one dead child, one living heir, and no evidence of who the living child belongs to: these are the facts of one of the most notorious legal battles of the ancient world. Two mothers found themselves in a dire dispute. Each nurtured a young child. However, one child died tragically in the night. Out of sorrow, the mother of the dead child claimed that the living child belonged to her (Barrett & Barrett, 2004). How could an ancient justice system possibly discern who was the true mother of the child? The presiding king Solomon stood up from his throne and said, “Cut the living boy in two and give half to one and half to the other” (1 Kings 3:25, Holman Christian Standard Bible). With one decisive phrase, Solomon discovered to whom the child belonged as the mother of the child screamed and begged him to preserve the child. Solomon’s solution revealed the true mother—the woman willing to give up motherhood to protect the life of her child. A potential legal nightmare was resolved cleanly and efficiently by a wise king acting as an arbitrator in what modern legal scholars describe as alternative dispute resolution (Barrett & Barrett, 2004). Alternative dispute resolution (or ADR) is nothing more than the use of methods like arbitration and mediation to resolve disputes instead of lawsuits. In 1990, the United States Congress passed the Administrative Dispute Resolution Act (ADRA) which required each federal agency to adopt a policy on the use of alternative dispute resolution (“About the Interagency,” n.d.). In 1996, ADRA was reenacted as the Administrative Dispute Resolution Act of 1996 (ADR Act) (“About the Interagency,” n.d.). In 2000, the Equal Employment Opportunity Commission (EEOC) required all federal agencies to establish ADR programs for use in the pre-complaint and formal complaint stages of the equal opportunity employment process (Equal Employment Opportunity Commission, 2007). In 1996, Congress passed an updated version of the ADRA which required contractors in the field of procurement to provide a written explantion whenever they chose not to pursue alternative dispute resolution (“Electronic Guide,” n.d.). Recent amendments to the Federal Acquisition Regulation (FAR)—the law that implements the ADRA provisions—encourage federal agencies to “use ADR procedures to the greatest extent practicable” (“Electronic Guide,” n.d., para. 2). Several other federal agencies have replicated these statutory changes by pledging their commitment to ADR. This is just some of the evidence of the growing reliance on alternative dispute resolution in federal agencies. While ADR is not a new invention, its effectiveness was relatively untested and understudied until recently. Either ADR serves justice well or it does not. The pursuit of a fair and effective system of justice in federal agencies demands one central

56 • Spring 2018


GEORGE WYTHE REVIEW

research question: is alternative dispute resolution effective in United States federal agencies? If ADR techniques are demonstrably effective, federal agencies should opt for ADR instead of litigation in more circumstances. If ADR is ineffective, federal agencies may need to reform their policies towards mediation and arbitration. This study tests the hypothesis: alternative dispute resolution is cost-effective and achieves satisfactory outcomes for both parties in a variety of circumstances and environments.

Literature Review There are a number of studies that point to the positive benefits of ADR specifically as applied to federal agencies. One particular case study from O’Leary and Raines (2001) used a four-part method to evaluate the effectiveness of ADR as it was used in the Environmental Protection Agency (EPA). The EPA, one of the pioneers of ADR in federal agencies, has used ADR for decades, providing a wealth of data and information about its advantages and disadvantages. In this case study, the researchers looked at in-depth telephone interviews, government statistics, and archived data to analyze the responses of four groups of people: the EPA’s ADR specialists, the defendants or responsible parties to EPA suits, mediators and facilitators of EPA disputes, and agency enforcement attorneys who participated in the ADR process. They found that there is a significant increase in positive win-win outcomes with the growth of ADR in the EPA (O’Leary & Raines, 2001). Edwards (1986) addressed ADR as if it were a passing fad. He noted that while it may be a fashionable alternative at the moment, ADR methods are understudied and overapplied. Simply put, he believed ADR is effective in narrow instances but has been applied in various areas where it does not belong. It has been misapplied to such a degree as to counteract the some of the purposes for which it is used. However, more recent research counters this characterization. A second study, completed by Maravilla, Block, and Matherne in 2014, studied the effectiveness of ADR in the context of the Federal Aviation Administration. Researchers examined recent usage of ADR in the FAA and found that in almost all cases, all parties come to an agreeable settlement and avoid future litigation. Avoidance of litigation could save the FAA significant expenditures of time and money (Maravilla et al., 2014). Stipanowich (2004) approached ADR from a balanced perspective. He found from a quantitative perspective that ADR has time and cost benefits where it has been applied thus far. However, he concluded that ADR succeeds or fails based on the structure of the program itself. There is nothing inherent about ADR that makes it work; rather, some ADR programs provide practical benefits due to being structured effectively. Stipanowich argued that to the extent that certain ADR programs are effective, they ought to be emulated by other organizations and agencies.

Spring 2018 • 57


GEORGE WYTHE REVIEW

Nabatchi (2007) studied circumstances where ADR has been less effective in federal agencies. She analyzed the implementation of the Administrative Dispute Resolution Acts of 1990 and 1996 in areas where federal agencies have run into difficulty implementing ADR. If an entire department fails to effectively implement ADR, that is a strong sign that ADR might not be particularly effective in that arena (Nabatchi, 2007).

Data and Methods Definitions

A dispute is a conflict between two or more parties called disputants (Ware, 2016). A dispute begins when one party, the claimant, makes a claim against the other party, the respondent (Ware, 2016). The claim usually asserts that the respondent has erred in some way, perhaps because the respondent has failed to fulfill some duty or obligation towards the claimant. This study will focus on a common type of such a dispute, one where a federal agency is the claimant. For example, the Environmental Protection Agency might discover a factory is dumping pollutants into a river, violating the EPA regulations on waste disposal. The EPA would lay a claim against the factory in which they assert that the error requires remedial action. That claim could be a cease and desist order and a fine. The factory could cease dumping pollutants, pay the fine, and the dispute would be resolved. However, oftentimes a dispute is not so easily resolved. For example, the factory could claim it is acting within vague EPA regulations that allow a certain amount of pollutants to be disposed of in the river. The factory could even assert a counterclaim alleging the EPA has wrongfully singled out and harmed its business. Traditionally, a legal dispute such as this could only be handled in court. Both parties would hire lawyers, pay extensive legal fees, and spend anywhere from several months to several years in court. Alternative dispute resolution is a collection of methods dedicated to finding a satisfactory settlement outside of a courtroom. Ironically, there is some dispute over what methods fall within the category of ADR. For the purposes of this study, ADR methods include the two institutionalized forms of negotiation: arbitration and mediation. Negotiation is a method of dispute resolution where the parties involved in the dispute arrive at some sort of settlement to the dispute themselves. It is the foundational concept upon which arbitration and mediation are based (Ware, 2016). Mediation is negotiation facilitated by a mediator. The mediator is an objective and unbiased party who communicates with all parties to discover their goals and priorities and works with the parties to help discover a satisfactory settlement for

58 • Spring 2018


GEORGE WYTHE REVIEW

all parties involved (Keith, 1997). The mediator merely serves as an impartial aide; his decisions are not binding. After arriving at the settlement, that settlement is made binding through a settlement agreement (Ware, 2016). Arbitration, on the other hand, is legally binding. All parties to a dispute would voluntarily assent to the decision making of an impartial arbiter (Keith, 1997). The arbiter would create a settlement for the parties, a decision which is binding and enforceable in court (Ware, 2016). Technically, litigation in court is a form of arbitration. However, litigation and arbitration in this sense have two distinct differences. First, parties in court do not voluntarily assent to the decision of a judge before the decision. Both parties will voluntarily agree that the arbiter’s decision is binding even before he makes a decision. Second, while judges are impartial and not parties to the dispute, the judge is still part of the government. Arbiters are in the private sector. This distinction is particularly significant when the government is a party to a dispute. A private sector arbiter is more impartial (Ware, 2016).

Variables

This study evaluates the interaction between the alternative dispute resolution methods and effective dispute resolution outcomes. The dependent variable is effective dispute resolution outcomes in federal agencies. The independent variable is alternative dispute resolution, specifically the techniques of mediation and arbitration. The central question therefore being, does alternative dispute resolutions correlate with effective dispute resolution in federal agencies? It is important to control for a few possible intervening variables. Notably, the type of agency dispute may skew the perceived effectiveness of the type of dispute resolution in a given case. It is possible that some types of disputes are more likely to be settled or resolved than others. Unfortunately, there is little available data outside the realm of employment dispute resolution. To mitigate this variable, case studies of specific agencies that utilize ADR outside of employment disputes will be included and analyzed. While these case studies do not completely mitigate the possibility of dispute type becoming an intervening variable, they hint as to whether or not the findings could be generalized outside of employment disputes with further research. A second possible intervening variable could be the agency itself. It is possible due to the very nature of an agency’s jurisdiction that disputes could be more or less severe or differ significantly in basis. In order to control for this intervening variable, the data from several major agencies will be compared and contrasted. If ADR has a consistent, measurable correlation with effective outcomes in multiple agencies and multiple categories of disputes, then these variables are likely marginal. If the data is somewhat inconsistent contrasted across agencies and categories of disputes, it is likely these intervening variables are significantly skewing the results.

Spring 2018 • 59


GEORGE WYTHE REVIEW

Operationalization

The nature of this study is both quantitative and qualitative. This study will use two quantitative measures of ADR’s effectiveness: first, the number of cases that utilize ADR without further litigation; and second, data regarding how much money is saved by agencies when using ADR. First, if a legal dispute goes through arbitration or mediation and continues through traditional litigation, then alternative dispute resolution methods were insufficient to resolve the dispute between all parties. On the other hand, if a large number of disputes are settled through alternative dispute resolution without continuing litigation, then all parties were sufficiently satisfied with the resolution to cease further litigation. While the quantitative portion of the study alone does not prove that ADR’s results are always satisfactory, it at least means that the parties involved would not have enough to gain from litigation to justify the costs. Quantitative research will be considered alongside the qualitative study of satisfaction in parties to ADR to approximate a more reliable result. If qualitative and quantitative measures both point to parties in ADR being satisfied with the result, that would qualify as significant evidence towards ADR’s effectiveness. The second quantitative measure is a cost comparison between ADR and traditional litigation. Litigation can take many forms, making it difficult to strictly compare the costs of ADR with the costs of a standard lawsuit. However, there is a significant amount of research that provides data on the general comparative costs of ADR and litigation in different areas of federal agencies. If ADR is demonstrably cheaper for federal agencies than litigation, then cost-effectiveness can be weighed as a factor. If ADR is not cost-effective in comparison to litigation, there is little reason to prefer ADR. These quantitative measures are more meaningful when compared with the diverse qualitative studies on ADR. Specifically, case studies of how ADR has been used in specific agencies will be informative. In-depth case studies have already been completed by the Environmental Protection Agency as well as the Federal Aviation Administration. Case studies in specific types of disputes across multiple federal agencies will also be informative. For example, ADR has been heavily used in employment disputes. Comparing different areas where ADR is used will also aid in determining if ADR’s effectiveness is limited to certain categories of disputes, controlling for the possibility of different areas of application becoming an intervening variable.

Data

The statistical and qualitative data on ADR in federal agencies is somewhat limited. There is not enough broad data across all agencies to compile comprehensive

60 • Spring 2018


GEORGE WYTHE REVIEW

statistics measuring resolution rates, costs, or satisfaction in all agencies and all types of disputes. Not all agencies have ADR available for all types of disputes. However, all equal employment opportunity (EEO) disputes must statutorily have an ADR option, regardless of the which agency the dispute occurs in. In fact, “in the federal government, parties use ADR in workplace cases more than in any other form of dispute resolution” (Ribeiro, 2005, p. 19). Comparing a specific type of dispute across all agencies accounts for any intervening variables due to varying procedures in different agencies. Thus, EEO disputes will constitute the primary data set for statistical analysis. Case studies of specific agencies can be used to supplement the EEO data and extrapolate its results to ensure any trends in EEO disputes are also reflected in other types of disputes as well. Comparing different areas where ADR is used will also aid in determining if ADR’s effectiveness is limited to certain categories of disputes, controlling for the possibility of different areas of application becoming an intervening variable.

Hypothesis

This study is based upon a simple hypothesis: alternative dispute resolution is correlated with effective outcomes in dispute resolutions in United States federal agencies. Three facts must be demonstrated to confirm this hypothesis. There must be consistent, demonstrable cost savings, qualitative evidence of satisfaction in resolutions, and a significant reduction in cases that continue through traditional litigation. These three factors must be demonstrated consistently in multiple categories of disputes across multiple federal agencies to control for and isolate the possible intervening variables. To disconfirm the hypothesis, any one of these three facts could be negated. The third possible outcome is that the hypothesis may be confirmed with limited generalizability. If these three factors are demonstrated to be true but inconsistent across categories of disputes and different agencies, it is possible the hypothesis is only true in the context of those categories and agencies.

Research and Analysis Resolution Rate

The Equal Employment Opportunity Commission (EEOC) commissioned a study that gathered data regarding the usage of ADR in all federal agencies in 2006. The data gathered analyzes ADR as a whole in every federal agency but also compares the performance of agencies against each other. This data can be used to determine if there are time savings, cost savings, and the percentage of cases that undergo further litigation. This data only covers ADR when used in the equal employment opportunity (EEO) process. That means this data specifically applies primarily to employment disputes. This data is significant because ADR is used in EEO disputes

Spring 2018 • 61


GEORGE WYTHE REVIEW

more than any other type of dispute. This is the result of an EEOC requirement established in 2000 that all federal agencies must establish or make ADR available during the pre-complaint and formal complaint stage of EEO disputes (Equal Employment Opportunity Commission, 2007). The Alternative Dispute Resolution Act of 1996 encourages agencies to use ADR where possible (“Electronic Guide,” n.d.), but in no other area is ADR required for federal agencies than EEO disputes (Equal Employment Opportunity Commission, 2007). Because EEO disputes are the only category of dispute where ADR must be an option, EEO disputes will provide the greatest quantity and broadest diversity in quantitative data. Figure 1 provides the number of total cases in EEO disputes that went through ADR during the pre-complaint stage. The data shows that approximately 50% of all EEO disputes in the pre-complaint stage are resolved by the time the ADR process ends (Equal Employment Opportunity Commission, 2007). The pre-complaint stage begins the moment an aggrieved person brings a problem to an EEOC counselor in a federal agency. An aggrieved person is legally required to bring any EEO matters to a counselor within 45 days of the supposed offense. A person may be offered the opportunity to go through some form of mediation before bringing any type of complaint forward (Equal Employment Opportunity Commission, 2007). To break down this data further, half of the complainants that come forward in EEO disputes and accept ADR do not continue to press any form of complaint after meeting with an EEOC counselor.

Figure 1. Number of EEO dispute resolutions in ADR during the pre-complaint stage in all agencies (Equal Employment Opportunity Commission, 2007).

62 • Spring 2018


GEORGE WYTHE REVIEW

Figure 2. Number of EEO dispute resolutions in ADR during the formal complaint stage in all agencies (Equal Employment Opportunity Commission, 2007). Figure 2 continues the comparison into the formal complaint stage. The formal complaint stage begins with any formal request for relief or formal complaint. In the formal complaint stage, among those disputes that go into ADR, 70% come out with a resolution (Equal Employment Opportunity Commission, 2007). When the two figures are combined, the number of cases that continue on through some form of litigation or traditional dispute resolution can be determined. Assuming that a complainant opts for ADR at all stages, the percentage of disputes that remain unresolved in EEO disputes in federal agencies would be 15%, giving ADR an 85% success rate in these disputes. To give context, ADR’s resolution rate can be compared with the resolution rate of EEO disputes that do not use ADR. Figure 3 demonstrates a trend from 2000 to 2008 that ADR cases have a higher percentage of being resolved than traditional EEO disputes. In fact, in no year does the traditional dispute resolution processing outperform ADR.

Figure 3. Resolution rate by year in the formal complaint stage of agency EEO disputes (Nabatchi & Stanger, 2012).

Spring 2018 • 63


GEORGE WYTHE REVIEW

Cost and Time Savings

The second critical measure of effectiveness is efficiency with time and money. Two researchers studied the efficiency of ADR against traditional equal opportunity employment disputes across federal agencies using the numbers released by the EEOC (Nabatchi & Stanger, 2012). One of several measures they used was average processing time. They averaged the time it took for a case to arrive at some sort of settlement or closure (Nabatchi & Stanger, 2012). Average processing time was measured specifically by the number of days it takes to reach a settlement. Figure 4 compares average processing time between traditional EEO cases and EEO disputes which used ADR.

Figure 4. Average processing time in days (APD) for agency EEO disputes (Nabatchi & Stanger, 2012). There are significant differences between the average processing times of each style of dispute resolution. In each year measured, ADR cases were resolved in less than a year. In fact, aside from 2004, every year saw the average ADR dispute conclude in less than 3 months. On the other hand, traditional EEO cases took longer than a year to process on average in every year measured. In every year measured, traditional EEO case resolution lasted on average at least 300 days longer than ADR. Another quantitative and qualitative study found significant disparities in financial efficiency between ADR and traditional dispute resolution. The typical cost expenditure of processing a basic workplace case is a minimum of $5,000 in administrative expenses (Senger, 2004). More complicated cases that enter formal adjudication can cost as much as $77,000. However, when the government utilizes mediation in an employment case, it only costs an average of $1,077 per case (Senger, 2004). Attorneys at the Justice Department estimated that opting for ADR during disputes saves the government an average of more than $17,000 in litigation costs per case (Senger, 2004). The Air Force provides a particularly compelling example. It estimates that it saves $14,000 and 276 hours of labor per case resolved (Senger, 2004).

64 • Spring 2018


GEORGE WYTHE REVIEW

Satisfaction

Several studies provide data on party satisfaction during the ADR process. The Federal Aviation Administration has begun to utilize ADR to a greater degree. One study analyzed the results and methods of FAA dispute resolution. It found that in 112 disputes in one year, 109 were satisfactorily resolved or withdrawn, and only two disputes required formal adjudication (Maravilla et al., 2014). The study concluded that: Parties are not bound to the zero-sum game results of an adjudicatory proceeding. A party engaged in ADR with the [Office of Dispute Resolution for Acquisition] may propose any “fair” resolution. Through the ADR process the parties can actually develop stronger relationships to the benefit of both the contractor and the agency in future interactions. (Maravilla et al., 2014, para. 16) With these numbers, it can be calculated that 97% of FAA disputes in ADR resulted in satisfactory settlements. Further, these settlements provided greater satisfaction between both parties because there was no adversarial process that amounts to a zero-sum game. The EPA has been the subject of a number of case studies due to their pioneering in the field of administrative ADR. Raines and O'Leary (2000) published a study that analyzed the satisfaction of attorneys belonging to the EPA and potentially responsible parties (PRPs) in regard to the mediation process. Attorneys by the nature of their duty to aggressively seek their client’s interests are a crucial measure of whether or not a party’s interest was satisfied. In no category did mediators in the process receive an average greater than 2 on a Likert scale of 1 to 5 with 1 being the most satisfied and 5 being the least satisfied (Raines & O’Leary, 2000). The study also provides data on attorneys’ satisfaction with the results of ADR. One year after this study was completed, the same researchers conducted a study on party satisfaction with the EPA’s ADR process. In this study, however, the researchers analyzed the viewpoints of all parties involved in the process. This study generalized these results beyond attorney satisfaction to the satisfaction of dispute resolution specialists, potentially responsible parties, attorneys, and mediators. The study concluded that “there are generally high levels of satisfaction with the EPA’s enforcement ADR program” (O’Leary & Raines, 2001, p. 682).

Spring 2018 • 65


GEORGE WYTHE REVIEW

Mediator's/Neutral's preparedness Respect, shown by the mediator/neutral Mediator's/ncutral's knowledge regarding the substance of the dispure Mediator's/Neutral's impartiality Mediator's/Neutral's skill in opening up new opt.ions Mediator's/Neutral's skill in aiding resolution Mediator's/Neutral's fairness Mediator's/Neutral's performance overall

1.49 1.28 1.79 1.43 1.96 1.81 1.51 1.60

Figure 5. EPA and PRP attorneys’ satisfaction with mediators. 1=very satsified, 5=very dissatisfied (Raines & O’Leary, 2000). These results are reinforced by another study of the EPA’s ADR program (Bourdeaux, O’Leary, & Thornburgh, 2001). Nader’s (1995) study of ADR satisfaction expressed a concern that the ADR process in agencies favors the more powerful party by locking them in a position of control before mediation begins. However, Bourdeaux, O’Leary, and Thornburgh (2001) concluded that the weaker party was generally more satisfied with the results of ADR. They concluded that this was case primarily due to relative cost savings that most benefited the party least able to afford litigation.

Figure 6. Attorney's satisfication with the outcome of ADR. 1=very satisfied, 5=very dissatisfied (Raines & O’Leary, 2000).

Conclusion After careful measurement of resolution rates, cost reductions, and party satisfaction, all three measurements provide indications that ADR is an effective form of dispute resolution in federal agencies. However, within the current constraints of available data, there is not enough evidence to generalize that conclusion beyond

66 • Spring 2018


GEORGE WYTHE REVIEW

employment disputes with a high degree of certainty. In employment disputes, ADR has a success rate of 85% and has outperformed traditional EEO dispute resolution in every year measured. ADR is a shorter process than traditional dispute resolution by more than 300 days in every year measured. When measuring satisfaction of all party attorneys on a scale of 1 to 5, with 1 being the most satisfied, no average came out higher than 2. That means that the average party attorney in ADR cases was either very satisfied or somewhat satisfied in every category measured. Each of these three measures confirms the hypothesis that ADR is an effective form of dispute resolution. The question is: how far can the hypothesis be generalized? Because there is no aggregate data about ADR across all agencies in other categories of disputes than employment, this hypothesis cannot be generalized with certainty beyond employment disputes. That said, the case studies regarding the EPA, FAA, and the Air Force do offer significant evidence that ADR may be just as effective beyond the realm of employment disputes. However, a sample of three agencies out of all the existing federal agencies is alone not enough to generalize the hypothesis. Rather, these examples should be taken as an incentive for future researchers to gather broader data on how federal agencies use ADR in other areas outside of employment disputes. If the same benefits of ADR found in employment disputes, the EPA, the FAA, and the Air Force are reflected in other areas of agency disputes, and other agencies, the positive outcome could be enormous. The dispute over the best form of dispute resolution is far from over. However, ADR has proven to be a faster, cost effective, and satisfactory form of dispute resolution in every category where there is enough data to sufficiently measure its outcome in federal agencies.

Spring 2018 • 67


GEORGE WYTHE REVIEW

Reference List About the interagency ADR working group. (n.d.). Interagency Alternative Dispute Resolution Working Group. Retrieved from https://www.adr.gov/ about-adr.html Barrett, J., & Barrett, J. P. (2004). A history of alternative dispute resolution: The story of a political, social, and cultural movement. San Francisco, CA: JosseyBass Publishing. Bourdeaux, C., O'Leary, R., & Thornburgh, R. (2001). Control, communication, and power: A study of the use of alternative dispute resolution of enforcement actions at the U.S. Environmental Protection Agency. Negotiation Journal, 17(2), 175-191. Retrieved from https://link.springer. com/article/10.1023/A:1013232226309 Edwards, H. T. (1986). Alternative dispute resolution: Panacea or anathema? Harvard Law Review, 99(3), 668-684. Retrieved from https://www.jstor.org/ stable/1341152 Electronic guide to federal procurement ADR: Introduction. (n.d.). Interagency Alternative Dispute Resolution Working Group. Retrieved from https://www. adr.gov/adrguide/intro.html Equal Employment Opportunity Commission. (2007). ADR Report: ADR in the federal sector EEO process for FY 2006. Retrieved from https://www.eeoc.gov/ federal/adr/adr_report_2006/index.html Keith, F. S. (1997). Alternative dispute resolution in government. Journal of Management in Engineering, 13(5). Maravilla, C. S., Block, S., & Matherne, G. (2014). How and why the FAA employs alternative dispute resolution. The Procurement Lawyer, 49(4), 1315. Nabatchi, T. (2007). The institutionalization of alternative dispute resolution in the federal government. Public Administration Review, 67(4), 646-661.

68 • Spring 2018


GEORGE WYTHE REVIEW

Nabatchi, T., & Stanger, A. (2012). Faster? Cheaper? Better? Using ADR to resolve federal sector EEO complaints. Public Administration Review, 73(1), 50-61. Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2091352 Nader, L. (1995). Civilization and its negotiations. In P. Caplan (Ed.), Understanding disputes: The politics of argument. Providence, RI: Berg Publishers. O'Leary, R., & Raines, S. S. (2001). Lessons learned from two decades of alternative dispute resolution programs and processes at the U.S. Environmental Protection Agency. Public Administration Review, 61(6), 682892. Raines, S., & O’Leary, R. (2000). Evaluating the use of alternative dispute resolution techniques and processes in U.S. Environmental Protection Agency enforcement cases: Views of agency attorneys. Pace Environmental Law Review, 18(1), 119-134. Retrieved from https://digitalcommons.pace. edu/cgi/viewcontent.cgi?article=1554&context=pelr Ribeiro, W. F. (2005). Alternative dispute resolution in the public sector: The American experience. Institute of Brazilian Business and Public Management Issues. Retrieved from https://www2.gwu.edu/~ibi/minerva/Spring2005/ Wilson.Fontes.Ribeiro.pdf Senger, J. M. (2004). Federal dispute resolution – Using ADR with the United States government. San Francisco, CA: Jossey-Bass Publishing. Stipanowich, T. J. (2004). ADR and the “vanishing trial”: The growth and impact of “alternative dispute resolution.” Journal of Empirical Legal Studies, 1(3), 843-912. Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_ id=1380922 Ware, S. (2016). Principles of alternative dispute resolution (3rd ed.). St. Paul, MN: West Academic Publishing.

Spring 2018 • 69


GEORGE WYTHE REVIEW

THE OTHER SIDE OF THE COIN: DEMAND-SIDE POLICY ALTERNATIVES TO THE DRUG WAR

Johanna Christophel Abstract Since President Richard Nixon declared a national war on drugs in 1971, the United States has spent upwards of one trillion dollars cracking down on illicit substances. Thousands of incarcerations and millions of dollars of drug interdictions have focused on the supply side of the drug equation and have produced few tangible results. This paper analyzes the question: are demandside programs a more effective and economical means for addressing America’s drug crisis? Through five case studies, this paper considers policy alternatives from in-patient treatment centers to outpatient drug courts. Specific attention is given to the cost of both programs within the context of the cost of the War on Drugs. This study demonstrates that demand-side treatment programs may be a better option, both for financial and recidivistic purposes. ___________________________________

70 • Spring 2018


GEORGE WYTHE REVIEW

Introduction American states are frequently referred to as “laboratories of democracy.” Individual policies can be tested on a microscale before being applied to the entire nation. At the national level, the United States federal government has militantly waged the War on Drugs since the Nixon administration. Drug interdiction efforts cost the federal government between $20 and $25 billion per year, and the United States maintains the highest per capita prison population in the world (Porter, 2012). From 1993 to 2009, approximately one-third of admissions to state and federal prisons were for drug crimes (Rothwell, 2015). While this data is concerning in its own right, African Americans are three to four times more likely to be arrested for drug crimes and nine times more likely to receive prison sentences for a drug-related offense than their white counterparts (Rothwell, 2015). Between 1993 and 2011, the United States saw three million drug-related state and federal prison admissions in addition to thirty million drug-related arrests (Rothwell, 2015). From a strategic perspective, all of these federal policies focus on the supply side of the drug market by reducing the amount of drugs to which people have access. In light of these issues, states have begun to respond by individually creating similar programs to address the problem of substance abuse and reform the incarceration process. These programs address the other side of the coin—the demand side. Rather than interdicting drugs at border checkpoints, these state programs seek to reduce demand for drugs among the general public, specifically among substance abusers. While each state is different, these programs share the common goal of reducing overall drug dependency among the most vulnerable populations. This study seeks to determine whether these demand-side policies offer a better national policy option than the War on Drugs. Through case study analysis, research will be conducted to answer the question: in the long run, are demand-side policies more cost-effective than supply-side efforts at reducing drug dependency? This study hypothesizes that demand-side programs are a more costeffective method. If this hypothesis is correct, state-level substance abuse programs may offer viable public policy alternatives at the federal level.

Literature Review The War on Drugs has clearly failed. Rates of substance abuse continue to skyrocket, and entire communities in rural America are overcome by heroin abuse. Suchman, Pajulo, DeCoste, and Mayes (2006) found that maternal substance abuse is the primary cause of children entering the child welfare system in the United States. Further, Shepard and Blackley (2005) found a substantial correlation in New

Spring 2018 • 71


GEORGE WYTHE REVIEW

York State between increases in per capita arrests for hard drug possession and higher rates of violent and property crime. In part, this correlation may have been triggered by the diversion of limited police resources. Hobson (2014) noted that the government misallocated national resources by using private military and security companies (PMSCs) to prosecute the War on Drugs in Latin America, neglecting underlying socio-economic issues. Bartilow (2014) found that counter-narcotic aid from the United States correlates with severe human rights abuses in Latin America. Yet, finding effective, politically-viable alternatives to the drug war will not be easy. As Scherlen (2012) noted, economic inefficiency and program failure are not politically-sufficient reasons to end the Drug War. Rather, there must be a substantial shift in public perception about the policy. Scherlen further noted that such support will only emerge if one of two conditions are met. There must either be proof that continuing in the status quo will lead to “sure loss” or convincing evidence that a “sure bet” alternative policy exists. Further, Sánchez-Moreno (2015) found that the body of international law dealing with the drug trade needs substantial reform to effectively fight organized crime and drug abuse worldwide. While there is agreement that the status quo is failing, there is division within the medical and public policy community as to appropriate, effective policy alternatives. Tiger (2011) found that designating substance abuse as a medical issue entrenches the racism inherent within the drug war by taking substance abuse out of the political realm and into the medical field. Such categorization can cripple the ability of minorities to address the systemic racial biases present within substance abuse policy. Lyons (2013) expressed concern that the therapeutic role judges have taken in drug treatment courts may compromise their neutrality. However, Baker (2013) discovered that the uniquely hybridized system of drug treatment courts provides an effective division between treatment and punishment, to the benefit of both the patient and society. After Gallagher’s (2014) study of a Texas county’s drug treatment program, he concluded that successful program completion significantly reduced a participant’s likelihood of recidivism. Similarly, Ungemack et al. (2015) demonstrated that Connecticut has successfully instituted a parental substance abuse program within the child welfare system that keeps families out of drug courts while offering users the help they need. On the national level, Douglas, Raudla, and Hartley (2015) discovered that collaboration between state, federal, and local government officials can have positive effects on drug court participation and effectiveness. Ultimately, the findings of Gallagher (2014), Ungemack et al. (2015), and Douglas et al. (2015) indicated that a federally-supported, state-by-state approach to substance abuse may have the greatest likelihood of ending the drug crisis.

72 • Spring 2018


GEORGE WYTHE REVIEW

Data and Methods Demand-side substance abuse programs are as diverse as America herself. There are multiple variations of in-patient and out-patient, court-ordered and voluntary, and in-prison and out-of-prison demand-side programs. All of these programs attempt to heal and assist a diverse group of people with unique economic, geographic, and therapeutic needs. Welsh (2002) identified four kinds of demandside drug abuse treatment programs: education programs, outpatient treatment, therapeutic communities, and ancillary groups. Each of these can exist inside and outside of a prison context. Therapeutic communities offer intensive residential substance abuse treatment, and ancillary groups provide self-help, peer counseling, and relapse-prevention groups. Ancillary groups are designed to serve a supplemental function to the other three program styles. In a similar vein, successful job training programs—often coupled with rehabilitation efforts—prepare the individual to reenter society in a contributive manner. While successful drug rehabilitation ends the social, legal, and economic strain that drug abusers may place on society, successful job training programs enable participants to reintegrate into their communities. In light of Welsh’s categories, this paper defines “demand-side drug abuse programs” as any combination of holistic treatment options that attempt to reduce individual consumption of illicit substances. These programs may exist in a variety of contexts. In a federal system, no single evaluative method or metric exists across state programs. Therefore, given regional differences and strategic diversity, this paper evaluates demand-side substance abuse programs by examining five case studies. For the sake of geographical balance, this paper draws representative case studies from a variety of regions. Case studies are selected to offer both geographic and programmatic diversity. For the purposes of this study, successful drug treatment programs are evaluated by two criteria. Successful drug treatment programs reduce (1) individual demand for illicit substances and (2) prison recidivism rates. The success of these drug treatment programs is compared with national data. In addition to success, the cost of each program relative to the cost of traditional incarcerations and interdictions is identified as an important metric to place programs within an economic context. When cost data is available, figures are adjusted to 2017 dollars using the Consumer Price Index from the Bureau of Labor Statistics (“CPI Inflation Calculator,” n.d.). This allows all data to be easily compared, contrasted, and contextualized. Secondary survey data covers five key regions: the West Coast, the Pacific Northwest, the Midwest, the East Coast, and the South. Surveys from Los Angeles County, Washington State, Illinois, Pennsylvania, and Dallas County are employed as case studies. These studies were conducted by a wide-variety of sources, including

Spring 2018 • 73


GEORGE WYTHE REVIEW

Temple University’s Center for Public Policy, Northwest Professional Consortium, Inc., (NPC) Research, and the University of Washington. These studies take into consideration drug courts, pre-incarceration efforts, and therapeutic communities. Data about prison populations, incarceration rates, and overall cost of imprisonment is drawn from the Bureau of Justice Statistics’ annual nationwide surveys.

Research The East Coast: Pennsylvania

In 1999, Temple University’s Center for Public Policy (CPP) embarked on a partnership with the Pennsylvania Department of Corrections (PA-DOC) to study the therapeutic communities available for incarcerated substance abusers in the state (Welsh, 2002). These in-prison therapeutic communities offer an intensive, longterm, highly-structured, residential treatment option for serious drug users who have been convicted of a criminal offense. For twelve to eighteen months, participating inmates are separated from the general prison population and immersed into a radical lifestyle change within the residential treatment environment. Therapeutic communities incorporate individual and group counseling, positive peer pressure, role models, and positive and negative incentive structures.

Figure 1. Comparison of reincarceration rates. Temple University’s study compared a sample of 2,981 therapeutic community inmates with a control group of therapeutic community-eligible inmates who instead participated in less-intensive treatments (Welsh, 2002). These less-intensive programs include efforts such as short-term drug education, outpatient groups, etc.

74 • Spring 2018


GEORGE WYTHE REVIEW

Researchers conducted prison surveys and inmate interviews and recorded monthly admission and discharge information. Inmates who successfully completed the therapeutic community program were 7% less likely to be reincarcerated after one year of release (Welsh, 2002). Inmates who completed the therapeutic community program had a 19% reincarceration rate, while inmates in the control group receiving less-intensive treatment had a 26% reincarceration rate (Welsh, 2002). In contrast, inmates incarcerated for drug crimes have a 42% one-year recidivism rate nationally (DuRose, Cooper, & Snyder, 2014). Figure 1 portrays the comparison between the three groups. When studying likelihood of drug relapse, the Temple University researchers found that inmates who had successfully completed the therapeutic community program had a 36% likelihood of drug relapse, compared with a 39% likelihood for the control group (Welsh, 2002). Figure 2 portrays these statistics. Recidivism rates were substantially lower for inmates who obtained full-time employment after release, at 19%, 25%, and 27% for three of the prisons that were surveyed (Welsh, 2002). While data is not available from the Pennsylvania Department of Corrections on the per-prisoner cost of in-prison therapeutic communities, the National Institute of Health conducted research in 2008 that discovered that therapeutic communities cost, on average, an additional $3956.76 per participant per year, adjusted for inflation, in addition to standard prison costs (French, Popovici, & Tapsell, 2008).

Figure 2. Comparison of drug relapse rates.

The West Coast: California

In 2008, Northwest Professional Consortium, Inc., (NPC) Research released a three-year longitudinal study of a cohort of California substance abuse treatment

Spring 2018 • 75


GEORGE WYTHE REVIEW

participants who entered two distinct programs from 2002-2003 (Carey, Pukstas, Waller, Mackin, & Finigan, 2008). Researchers tracked and compared individuals who participated in drug courts with individuals who participated in state-mandated drug treatment programs as provided by the Substance Abuse and Crime Prevention Act (SACPA). The study compared these two programs in San Joaquin County and El Monte in Los Angeles County. California’s drug court program required intense court supervision and monitoring of participant attendance at treatment. Participant behavior was rewarded and sanctioned, and successful participants received a graduation ceremony. In a highly-personalized setting, participants were assigned a team that assessed, strategized, and determined participant completion. In contrast to inprison treatment options, California’s drug courts allowed substance abusers to remain in their communities (Carey et al., 2008). Like California’s drug courts, SACPA offered an opportunity for nonviolent offenders with a history of substance abuse to remain in their communities, in lieu of incarceration. SACPA was quite decentralized, as the state of California allowed county-to-county program development. In contrast to the highly-personalized regime of drug courts, SACPA programs lacked such intense, direct supervision. There was no support team specifically created to design a plan and supervise each program participant. However, SACPA offered a large number of treatment providers that could provide more specific and nuanced treatment options than California’s drug courts offered. At the same time, SACPA did not require regular drug testing of participants (Carey et al., 2008). At the time of the study, the 62,000-member population of San Joaquin County, in California’s Central Valley, was 58% white, 7% black, 11% Asian, and 31% Hispanic/Latino (Carey et al., 2008). The county faced high poverty rates in 2006, at 17.7% (Carey et al., 2008). In contrast to the relatively suburban-rural population of San Joaquin County, the city of El Monte in Los Angeles County had a population of 130,000 people dwelling within a dense, urban environment (Carey et al., 2008). El Monte’s demographics were majority Hispanic (82%), followed by Asian (13%) and white (4%) in 2006 (Carey et al., 2008). The population was plagued by relatively high poverty, at 26% in 2006 (Carey et al., 2008). San Joaquin County’s drug court program was exclusively offered to felony offenders, excluding large-scale drug sellers and violent criminals. Prospective participants were offered entry into the drug court as part of a plea on an eligible case. While threats of jail time could be used as a motivational sanction, participants remained members of their communities during treatment. Teams of representatives from the court, the district attorney’s office, the public defender’s office, and other offices formed a steering committee for each participant. In addition to the steering committee, each participant had a case manager who produced weekly progress

76 • Spring 2018


GEORGE WYTHE REVIEW

reports. Drug courts were grounded in incentive structures, offering tangible rewards (e.g., keychains, pens, etc.) and sanctions (e.g., verbal reprimands, jail time, etc.). In order to graduate, members had to participate in the program for at least twelve months, stay drug-free for at least 120 days, and remain crime free (Carey et al., 2008). Similarly, El Monte’s drug court program offered eligibility to drug offenders with no prior serious or violent felony convictions, no strike convictions, and no sales or trafficking convictions. Drug court participants received suspended jail time and passed through three treatment phases and an alumni program. The first phase was an intensive set of three to five group treatment sessions per week, at least one individual treatment session per week, and court sessions every two weeks. Only one treatment agency provided these services for participants; however, the agency offered additional recovery services such as mental health facilities and GED and parenting classes. Each participant’s assigned drug court supervision team met once or twice per week to evaluate progress reports. Like San Joaquin’s drug court program, the El Monte drug courts employed a system of rewards and sanctions to motivate participants. To graduate, individuals had to complete all program requirements, remain clean for six months, and be either employed or in school fulltime (Carey et al., 2008). In contrast to the drug court system, San Joaquin’s SACPA program gave access to a wide variety of treatment providers. At arraignment, the SACPA program was offered to prospective participants who were referred to treatment providers by their probation office. Like the drug courts, participants were allowed to remain free members of society, fully incorporated into their communities. SACPA included four intensity levels, the selection of which was determined by the level of need identified during the probation officer’s assessment. Depending on the assessed need, SACPA participants received as little as outpatient treatment twice-per-week or as much as residential treatment with self-help groups. Participants remained in the program for at least two to three months, with a minimum of one year of aftercare following program completion (Carey et al., 2008). Similarly, El Monte’s SACPA program had a network of one-hundred treatment providers offering three levels of treatment—from eighteen weeks to forty weeks. Many treatment providers also offered ancillary services for participants. While substance abusers attended quarterly court sessions and received monthly progress reports, there was no direct supervisory team providing team meetings, rewards, or sanctions. El Monte’s SACPA also offered a significant amount of grace to participants, allowing positive drug tests, missed drug tests, or missed counseling sessions before being terminated from the program. In order to complete SACPA, participants had to be clean for thirty days, pay all associated fees, attend all of their

Spring 2018 • 77


GEORGE WYTHE REVIEW

treatment sessions, and participate in at least six months of aftercare (Carey et al., 2008). When taken as a whole, there were a few distinctions between the SACPA program and the drug courts in El Monte and San Joaquin. While drug courts only offered a couple of treatment providers, SACPA gave participants access to a relatively large number. Drug courts offered reward systems, personalized meetings and court appearances, and alumni support systems. SACPA lacked these elements. Likewise, drug court participants were assigned a personalized team that met weekly to discuss his or her progress, but SACPA did not create such a committee. Prior to the passage of SACPA, drug courts were California’s primary out-of-prison, courtordered substance abuse treatment program. After SACPA’s creation, more difficult cases began to be diverted to the drug courts, so the National Institute of Justice study accordingly measured the success rates of drug courts both before and after SACPA’s creation (Carey et al., 2008). When measuring completion in San Joaquin County’s programs, NPC Research found that 29% of drug court participants graduated from the program preSACPA and 23% of participants graduated after SACPA’s implementation (Carey et al., 2008). 31% of San Joaquin’s SACPA participants completed the program during the NPC Research study (Carey et al., 2008). El Monte saw somewhat better results. 80% of pre-SACPA drug court participants completed the program, compared with 50% of post-SACPA drug court participants (Carey et al., 2008). On the other hand, 33% of SACPA participants successfully finished the program (Carey et al., 2008). As a measure of programmatic success, NPC Research also tracked re-arrest rates of drug court and SACPA participants in both San Joaquin and El Monte. After three years, the average number of re-arrests for pre-SACPA drug court participants in San Joaquin was 2.2 (Carey et al., 2008). The average number of re-arrests for post-SACPA drug court participants was 4.1, and the average number of re-arrests for SACPA participants was 4.2 (Carey et al., 2008). This data is reflected in Figure 3. El Monte’s re-arrest rates were comparatively lower. Pre-SACPA drug court participants possessed an average re-arrest rate of 1.7 per person after a three year period (Carey et al., 2008). Post-SACPA drug court participants had an average of 2.6 re-arrests per person average, and SACPA participants had an average of 2.8 rearrests (Carey et al., 2008). This data is reflected in Figure 4.

78 • Spring 2018


GEORGE WYTHE REVIEW

Figure 3. Comparison of re-arrest rates in San Joaquin.

Figure 4. Comparison of re-arrest rates in El Monte. Over the course of the two programs, the total cost per participant—including both programmatic and outcome costs—in San Joaquin was $52,952 for the drug court and $60,931 for the SACPA program (Carey et al., 2008). El Monte’s costs were slightly lower, at $46,067 for the drug court and $57,641 for SACPA (Carey et al., 2008).

Spring 2018 • 79


GEORGE WYTHE REVIEW

The South: Texas

Researchers from Texas Christian University and the University of Kentucky (TCU-UK) conducted a study on a Texas Judicial Treatment Center (Knight, Simpson, & Hiller, 2003). This residential substance abuse facility was a Therapeutic Community (TC), a type of long-term residential treatment designed to divert drug-involved felony offenders from lengthy incarcerations. It offered judges one of the most restrictive options to impose before requiring state jail or prison terms. Participants went through three stages: orientation, main treatment, and re-entry into the community. The program offered counseling, life skill training, peer-to-peer therapy, and vocational and educational instruction. The TCU-UK study tracked 429 probationers admitted in 1998 (Knight et al., 2003). The group was 70% male, 48% African American, and 40% white, with an average age of thirty-two years old (Knight et al., 2003). Researchers compared the results of a control group with participants who graduated and participants who dropped out of the program prior to completion. Programmatic success was operationalized based on participant recidivism rates. One year after graduation, 20% of dropouts, 17% of graduates, and 13% of the comparison control group had been re-arrested (Knight et al., 2003). However, two years after graduation, an additional 10% of the drop-out group and 10% of the comparison control group had been rearrested, in contrast to only an additional 4% of the graduated group (Knight et al., 2003). The relationship between these percentages is reflected in Figure 5. On the whole, the overall impact of participants graduating from the Judicial Treatment Center appears to emerge most strongly in the second year after completion.

Figure 5. Comparison of recidivism rates.

80 • Spring 2018


GEORGE WYTHE REVIEW

The Pacific Northwest: Washington State

In 2015, the University of Washington released its longitudinal study of the success of Washington State’s Law Enforcement Assisted Diversion (LEAD) program (Collins, Lonczak, & Clifasefi, 2015). Researchers tracked 203 adult LEAD participants in comparison to a 115-member control group (Collins et al., 2015). The study group was 60% African American, 26% white, 2% Asian, 3% Latino, and 4% Native American/Pacific Islander (Collins et al., 2015). The group was predominantly male, with females constituting only 34.18% of the group (Collins et al., 2015). This statistical disparity was due to the ratios of male-to-female drugrelated arrests. Participants were suspected of either violations of the uniform controlled substances act (VUCSA) or prostitution offenses. For predictability's sake, individuals with a significant criminal history (e.g., kidnapping, sexual offense, domestic violence, etc.) were disqualified from the study. The control group was selected from individuals who would have met all of the qualifications for the LEAD program under other circumstances. However, these control group members were arrested either during “redlight shifts,” when all arrestees are ineligible, or in nonLEAD-eligible neighborhoods, according to state and local guidelines (Collins et al., 2015). Case managers in the LEAD program connected participants with existing community resources such as legal advocacy, job training, housing assistance, and counseling. At its core, these services were designed to maximize harm-reduction and minimize barriers to access. The study analyzed a number of informative variables to ascertain program effectiveness. The following were all identified as relevant data points: the number of jail bookings, number of jail days, percentage of participants incarcerated in a prison, overall criminal and legal system costs, percent of participants with one or more arrests over the course of the entire LEAD evaluation, and percent of participants charged at least once across the entire LEAD evaluation (Collins et al., 2015). Pre-evaluation for the LEAD program, the LEAD group averaged 1.65 jail bookings per year, compared to 1.36 jail bookings per year for the control group (Collins et al., 2015). After completing the LEAD program, participants dropped to an average of 1.19 jail bookings per year, compared with an increase for the control group to 2.27 bookings per year (Collins et al., 2015). The average number of jail days per year reflected a similar trend. LEAD participants spent an average of 32.44 days in jail per year before entering LEAD and only 22.84 days per year after completing LEAD (Collins et al., 2015). On the other hand, members of the control group averaged 24.87 days in jail per year before the study, increasing to 52.51 days per year in their post-evaluation (Collins et al., 2015). Seven percent of LEAD group participants were incarcerated prior to joining the program, but only 2%

Spring 2018 • 81


GEORGE WYTHE REVIEW

were incarcerated after completion (Collins et al., 2015). The control group reflected similar statistics at the outset, with 6% of members having been incarcerated prior to the study (Collins et al., 2015). However, in their post-evaluation, 13% of control group members had been incarcerated at some time after release (Collins et al., 2015). Figure 6 reflects this trend.

Figure 6. Comparison of recidivism rates for the LEAD program. The LEAD program demonstrated a positive return on investment for the state. The average yearly criminal and legal system cost per individual in the LEAD group was $7,131 prior to joining the program (Collins et al., 2015). This dropped by over $2,000 to $4,949 per year after completion (Collins et al., 2015). In contrast, costs for the control group spiked. The control group averaged a yearly legal and criminal cost of $5,958 before the study but averaged $12,152 by the end, since their cycle of criminal activity was never broken (Collins et al., 2015). While 83% of LEAD group participants had at least one arrest prior to the LEAD study, only 58% had one or more arrests over the course of the evaluation (Collins et al., 2015). 77% percent of control group participants had at least one arrest on their record prior to the study (Collins et al., 2015). This number increased to 80% over the course of the evaluation (Collins et al., 2015). The percent of participants charged at least once during the study was the single variable in which both the LEAD group and the control group decreased. 73% of LEAD group members had been charged at least once prior to evaluation, but only 45% were charged during the study (Collins et al., 2015). Similarly, 70% of the control group had been charged at least once prior to evaluation, but only 57% were charged during the study (Collins

82 • Spring 2018


GEORGE WYTHE REVIEW

et al., 2015). While both groups decreased in charges, the individuals in the LEAD group saw a greater improvement overall. Individualized costs of the LEAD program were estimated from monthly expense reports, the annual salary and benefits of the prosecutors reviewing the case, and the annual salary and benefits of the public defenders associated with LEAD project management and legal services. Based on these variables, the study determined that the LEAD program cost approximately $934 per participant per month, for a total of $11,208 per participant per year when start-up costs were included in the data (Collins et al., 2015). However, the cost dropped to $553 per participant per month by the end of the study, once start-up costs were appropriately phased out of the calculation (Collins et al., 2015).

The Midwest: Illinois

In 2011, the Illinois Criminal Justice Information Authority released a study of the Sheridan Correctional Center Therapeutic Community (TC) (Olson, 2011). At the time the Sheridan TC was in its sixth year of existence. Participants in the program voluntarily opted in, but individuals with murder or sex-offense convictions were excluded. The eligibility requirements mandated that at least nine to thirty-six months remain on an individual’s prison sentence, in order to allow for sufficient time to complete the program (Olson, 2011).There are approximately 1,650 offenders enrolled in the program (Olson, 2011). If prisoners successfully complete the program, they can receive reduced prison time, which saves the state money. Between 2005 and 2010, the state of Illinois saved $18.4 million from reduced incarceration costs because of early release from the Sheridan TC (Olson, 2011). The Sheridan Correctional Center, structured on a Therapeutic Community model, offered the most intensive drug treatment program available to prison inmates in the state of Illinois. Participants in the program undertook tasks like helping lead treatment sessions and resolve disputes. While the TC offered substance abuse treatment, it also sought to treat underlying personality disorders that may have triggered or contributed to addiction. Employment assistance services, job preparedness training, and vocational services were all offered through various vendors including Illinois Valley Community College and Home Builders Institute. Graduates of the TC were required to participate in aftercare funded by the Illinois Department of Corrections. This aftercare generally lasted around ninety days and involved halfway houses, transitional homes, etc. (Olson, 2011). The study measured the relative success rate of the TC based on post-release patient recidivism. Thirty-six months after completing the program, 50% of participants who had fully completed the aftercare element of the program returned to prison (Olson, 2011). For comparison, 50% of the control group had returned

Spring 2018 • 83


GEORGE WYTHE REVIEW

to prison, and 60% of TC participants who failed to complete aftercare were reincarcerated (Olson, 2011). Over half of Sheridan TC admittees were eligible for reduced prison sentences through Illinois’ Earned Good Conduct Credit (EGCC) for participation in a substance abuse program. During the first six years of Sheridan TC’s operation, the EGCC program generated an annual total of 119 years of reduced incarceration time (Olson, 2011). Reduced incarceration time from the Sheridan TC alone resulted in an annual savings of $3.07 million (Olson, 2011). Reduced incarceration time also enabled an increased number of Sheridan TC participants, as individuals with EGCC-reduced sentences were phased out of the program and released, making room for new substance abusers. The overall cost for a Sheridan participant was calculated to include incarceration costs during treatment as well as post-release costs. Thus, the total cost per participant includes security and treatment services for inmates and postrelease clinical case management, aftercare treatment, employment referrals and placements, and housing-related referrals and placements. Incorporating all of these factors, the Sheridan TC cost around $34,500 per person per year in FY2008 (Olson, 2011).

Conclusion The number, style, and cost of drug treatment programs throughout the United States is as varied and diverse as the states themselves. Based on the five evaluated case studies, there is not conclusive data that any single methodology is superior to any other. Nonetheless, the data collected in this survey indicates that relatively high initial costs for drug treatment programs generate an overall positive return on investment in the long run. These benefits are reflected through reduced recidivism rates, reduced re-arrest rates, and reduced drug relapses. While treatment program costs are generally higher than the cost of regular incarceration, they appear to pay off in the long run as participants spend less time in the criminal justice system, draining less prosecutorial and public defense resources. The data confirms the paper’s hypothesis that programs that target the individual’s affinity for drugs—demand-side policies—are more cost-effective in the long run than programs that exclusively seek to incarcerate substance abusers without providing treatment or job training options. Although, it is important to note that perhaps these state programs are successful primarily because they are used in conjunction with federal drug interdiction policies. All of these case studies were evaluated while the federal government has been involved in an active War on Drugs. Likewise, there is a possibility that policymakers should balance a combination of both demandside and supply-side programs to craft effective substance abuse programs.

84 • Spring 2018


GEORGE WYTHE REVIEW

However, America is in desperate need of innovative reforms to drug policy. As of 2010, 48% of the federal prison population was incarcerated for drug offenses, costing the government over $4 million, notwithstanding lost economic output and court costs (Carson & Sabol, 2012; Kyckelhahn, 2014). The results of this study offer a hopeful indication that the plethora of drug treatment programs will continue to be tested, developed, and improved at the state level so that eventually the best programs or combination of programs can be implemented nationwide. Overall, it appears that state-based democratic laboratories have succeeded in slowly but surely developing useful, cost-effective, healing alternatives to the persistent, militant War on Drugs.

Spring 2018 • 85


GEORGE WYTHE REVIEW

Reference List Baker, K. M. (2013). Decision making in a hybrid organization: A case study of a southwestern drug court treatment program. Law & Social Inquiry, 38(1), 27-54. Retrieved from https://doi.org/10.1111/j.1747-4469.2012.01295.x Bartilow, H. A. (2014). Drug wars collateral damage: U.S. counternarcotic aid and human rights in the Americas. Latin American Research Review, 49(2), 24-46. Retrieved from https://pdfs.semanticscholar.org/99f4/ c5a188f71bf2e68e72a0ed710b9b9c2d4995.pdf Carey, S. M., Pukstas, K., Waller, M. S., Mackin, R. J., & Finigan, M. W. (2008). Drug courts and state mandated drug treatment programs: Outcomes, costs, and consequences. NPC Research. Retrieved from https://www.ncjrs.gov/ pdffiles1/nij/grants/223975.pdf Carson, E. A., & Sabol, W. J. (2012). Prisoners in 2011 (Report No. NCJ 239808). Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics. Retrieved from https://www.bjs.gov/content/pub/pdf/p11.pdf Collins, S. E., Lonczak, H. S., & Clifasefi, S. L. (2015). LEAD program evaluation: Criminal justice & legal system utilization & associated costs. University of Washington - Harborview Medical Center. Retrieved from http://static1.1.sqspcdn.com/static/f/1185392/26401889/1437170937787/ June+2015+LEAD-Program-Evaluation-Criminal-Justiceand-Legal-System-Utilization-and-Associated-Costs. pdf?token=8ngkviQVZNyfg%2BMNTl3IBGHvC8o%3D CPI inflation calculator. (n.d.). Retrieved February 9, 2017, from https://data.bls. gov/cgi-bin/cpicalc.pl Douglas, J. W., Raudla, R., & Hartley, R. E. (2015). Shifting constellations of actors and their influence on policy diffusion: A study of the diffusion of drug courts. Policy Studies Journal, 43(4), 484-511. Retrieved from https:// doi.org/10.1111/psj.12113 Durose, M. R., Cooper, A. D., & Snyder, H. N. (2014). Recidivism of prisoners released in 30 states in 2005: Patterns from 2005 to 2010 (Report No. NCJ 244205). Washington, D.C.: U.S. Department of Justice, Bureau of

86 • Spring 2018


GEORGE WYTHE REVIEW

Justice Statistics. Retrieved from https://www.bjs.gov/content/pub/pdf/ rprts05p0510.pdf French, M. T., Popovici, I., & Tapsell, L. (2008). The economic costs of substance abuse treatment: Updated estimates and cost bands for program assessment and reimbursement. Journal of Substance Abuse Treatment, 35(4), 462-469. Retrieved from https://doi.org/10.1016/j.jsat.2007.12.008 Gallagher, J. R. (2014). Predicting criminal recidivism following drug court: Implications for drug court practice and policy advocacy. Journal of Addictions & Offender Counseling, 35(1), 15-29. Retrieved from https://doi. org/10.1002/j.2161-1874.2014.00021.x Hobson, C. (2014). Privatizing the war on drugs. Third World Quarterly, 35(8), 1441-1456. Retrieved from https://www.tandfonline.com/doi/abs/10.1080/0 1436597.2014.946261 Kaeble, D., & Glaze, L. E. (2016). Correctional populations in the United States, 2015. Bureau of Justice Statistics. Retrieved from https://www.bjs.gov/index. cfm?ty=pbdetail&iid=5870 Knight, K., Simpson, D. D., & Hiller, M. L. (2003). Outcome assessment of correctional treatment (OACT). Texas Christian University Institute of Behavioral Research. Retrieved from http://citeseerx.ist.psu.edu/viewdoc/ download?doi=10.1.1.216.5208&rep=rep1&type=pdf. Kyckelhahn, T. (2014). Justice expenditure and employment extracts, 2010 final. Bureau of Justice Statistics. Retrieved from https://www.bjs.gov/index. cfm?ty=pbdetail&iid=5049 Lyons, T. (2013). Judges as therapists and therapists as judges: The collision of judicial and therapeutic roles in drug treatment courts. Contemporary Justice Review, 16(4), 412-424. Retrieved from https://doi.org/10.1080/10282580.20 13.857076 Olson, D. E. (2011). Sheridan Correctional Center Therapeutic Community: Year 6 - Program evaluation summary. Illinois Criminal Justice Information Authority, 8(1), 1-11. Retrieved from http://www.icjia.state.il.us/assets/pdf/ ProgEvalSummary/Program_Eval_Sheridan_Year6_072011.pdf+

Spring 2018 • 87


GEORGE WYTHE REVIEW

Porter, E. (2012, July 3). Numbers tell of failure in drug war. New York Times. Retrieved from http://www.nytimes.com/2012/07/04/business/inrethinking-the-war-on-drugs-start-with-the-numbers.html Rothwell, J. (2015). Drug offenders in American prisons: The critical distinction between stock and flow. Brookings Institution. Retrieved from https://www. brookings.edu/blog/social-mobility-memos/2015/11/25/drug-offenders-inamerican-prisons-the-critical-distinction-between-stock-and-flow/ Sánchez-Moreno, M. M. (2015). Winding down the war on drugs: Reevaluating global drug policy. Harvard International Review. Retrieved from http://hir. harvard.edu/article/?a=11733 Scherlen, R. (2012). The never-ending drug war: Obstacles to drug war policy termination. PS: Political Science and Politics, 45(1), 67-73. Shepard, E. M., & Blackley, P. R. (2005). Drug enforcement and crime: Recent evidence from New York State. Social Science Quarterly, 86(2), 323-342. Retrieved from https://doi.org/10.1111/j.0038-4941.2005.00305.x Suchman, N., Pajulo, M., DeCoste, C., & Mayes, L. (2006). Parenting interventions for drug-dependent mothers and their young children: The case for an attachment-based approach. Family Relations, 55(2), 211-226. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1847954/ Tiger, R. (2011). Drug courts and the logic of coerced treatment. Sociological Forum, 26(1), 169-182. Retrieved from http://onlinelibrary.wiley.com/wol1/ doi/10.1111/j.1573-7861.2010.01229.x/full Ungemack, J., Giovannucci, M., Moy, S., Ohrenberger, K., DeMatteo, T., & Smith, S. (2015). Making it work without a family drug court: Connecticut’s approach to parental substance abuse in the child welfare system. Child Welfare, 94(5), 107-123. Welsh, W. N. (2002). Evaluation of prison based drug treatment in Pennsylvania: A research collaboration between the Pennsylvania Department of Corrections and the Center for Public Policy at Temple University, final report. Center for Public Policy at Temple University. Retrieved from https:// www.ncjrs.gov/pdffiles1/nij/grants/197058.pdf

88 • Spring 2018


GEORGE WYTHE REVIEW

COMING TO AMERICA: AN ANALYSIS OF PROPORTIONAL REPRESENTATION IN THE STATES

Keith Zimmerman Abstract The political tensions of the last decade have caused citizens to question the dominance of the American two-party system and criticize the current method of electing political leaders. The United States is one of the only democracies in the world to resist the adoption of proportional representation systems, which are used around the world to elect legislators and statesman. However, proportional systems—especially the Single Transferable Vote method of casting ballots— have been used in states to varying degrees. This study examines the history of proportional representation around the world and in America, examining its effectiveness as an alternative voting system. The research tentatively suggests that, despite legitimate criticisms, proportional representation could be a viable alternative to the deficient American electoral system. ___________________________________

Spring 2018 • 89


GEORGE WYTHE REVIEW

Introduction A common complaint among voters in recent elections is the domination of the political process by the two major parties: Democrats and Republicans. A recent Gallup poll asked over a thousand Americans whether the current party system was doing an adequate job, and only 37% agreed with the statement. Over half of those polled suggested that a third party would be a good idea. This is a drastic change from 2012 and 2008, when voters were equally split between the two opinions. In 2003, when the poll was first run, over half of those polled considered the current party system adequate (Jeffrey, 2016). These worrying trends of distrust for the two party system are joined by concern that the electoral system meets the needs of political leaders without requiring them to be responsive to the people, and Congressmen are incentivized to position themselves for re-election rather than fighting for meaningful change (Mayhew, 1974). These concerns could lead to a reconsideration of our election system. One potential change that some scholars have proposed entails introducing an electoral system of proportional representation. While this system is used ubiquitously across the democratic world, it has never gained significant traction in the United States. However, a proportional representation system known as the Single Transferable Vote has been used in American municipalities since the beginning of the 20th century. This study will discuss how proportional representation differs from other voting systems, its history in the United States, the statistical results of its history, and the benefits and drawbacks of the system. This study will attempt to answer the research question: could proportional representation systems provide fair and accurate representation in America? Analysis of the use of Single Transferable Voting in Ohio combined with other historical evidence suggests that, if implemented correctly, proportional systems could be both effective and accepted in American politics.

Research Background: Comparing and Contrasting Voting Systems

Generally, there are three types of electoral systems employed by democratic governments: plurality electoral systems, majority electoral systems, and proportional representation systems (King, 2000). Plurality electoral systems are “first-past-the-post”—or “winner-take-all”—systems that award the seats of singlemember constituencies to the candidate that gets the most votes, regardless of whether or nor that candidate receives a majority. A majority electoral system is a “second ballot” system that is similar to the plurality electoral system, except that it

90 • Spring 2018


GEORGE WYTHE REVIEW

requires candidates to receive a majority of the vote to win a seat. If no candidate achieves a majority, a second round of voting is necessary, with the candidates that received the least number of votes dropping out (King, 2000). The final electoral system is proportional representation, which is an “electoral system that seeks to create a representative body that reflects the overall distribution of public support for each political party” (“Proportional Representation,” n.d., para. 1). Proportional representation differs greatly from the other two electoral systems. Instead of single-member districts, it has multi-member constituencies. In a single-member district, voting is done on a regional basis, with candidates pandering to the specific needs of an area. In multi-member constituencies, on the other hand, voting is done on a broader basis, with candidates and parties appealing to the needs of the area as a whole, since they represent a larger geographic area. As a result, instead of voting for one representative, constituents often vote for a party or rank candidates (King, 2000). Contrary to what many Americans may believe, proportional representation is the most widely used electoral system in the world. The least used of the three systems is the majority electoral system, which is used to elect legislators in France and presidents in some European states such as Russia, Portugal, and France (King, 2000). The plurality electoral system is only slightly more widespread than the majority system. The only countries that use this are the United States, Great Britain, and a number of former British and American colonies. Proportional representation, on the other hand, is the system of choice for the grand majority of other democratic countries in the world, including major world powers such as Germany and Japan (Hertzberg, 2004). Forms of proportional representation can be found at some level in practically every democratic country, even if only on the city or county level (King, 2000). The two most widely-used forms of proportional representation are party list systems and Single Transferable Vote (STV). In party list forms of proportional representation, voters vote for parties rather than individual candidates. This is done in either a closed party list system, in which parties choose the individuals who will fill their seats, or an open party list system, in which voters have some ability to choose who the parties will select. To allocate seats to the parties, most party list systems use the “highest average method using the D’Hondt formula,” named after the Belgian mathematician Victor D’Hondt (King, 2000, para. 10). Take Loudoun County, for example, a county in Northern Virginia with 312,311 people living within its borders as of 2010 (“Frequently Asked Questions,” n.d.). Assume for the sake of argument that there is 100% voter turnout and that 115,000 people voted Republican, 100,000 people voted Democrat, 70,000 people voted Libertarian, and 27,311 people voted for the Green party. There are seven

Spring 2018 • 91


GEORGE WYTHE REVIEW

state representatives from Loudoun County (“State & Federal Legislators,” n.d.), and the seats would be chosen in such a manner: the number of votes are placed in a table and divided by numbers starting at one and increasing by intervals of one. The highest quotient in the list awards a seat to its party, and further quotients are selected until all seven seats are allocated. The bolded numbers below represent the seats given to each party, with three Republican seats, two Democrat seats, two Libertarian seats, and zero Green seats (Figure 1).

Figure 1. Example of STV vote allocation using data from Loudon County, Virginia. The Single Transferable Vote (STV) system is perhaps a bit more complicated than the party list system. In this system, originally created by British politician Thomas Hare, citizens cast votes for individuals instead of parties (King, 2000). The important part is that the voters rank candidates rather than simply voting for a single candidate. Awarding seats is done using a mathematical formula, the most popular of those being the Droop Quota, expressed by the formula: [V/(S+1)] + 1. In this formula, ‘V’ is number of votes and ‘S’ is number of seats up for election. The resulting number is the ‘quota,’ or the minimum number of votes necessary to win a chair (King, 2000). For example, in the Loudoun County example used above, in which 312,311 valid votes are cast for seven seats, the quota (rounded up) is 39,040. This is achieved through the formula: [312,311/(7+1)]+1. Ballots are initially sorted by the voters’ first preference. As soon as a candidate reaches the quota of 39,040 votes, they are declared elected. Any more votes for this candidates are now considered surplus, meaning that they are redistributed to the candidate marked as the next choice on the ballot. Those handling the votes continue counting until all the votes are distributed or redistributed. If the seats are not all filled, then all candidates who received less than fifty votes are removed and their votes are also redistributed to the next choice on the ballot. After each redistribution, the candidate with the lowest number of votes is eliminated, redistributing their next indicated choice among the remaining unelected candidates (“Proportional Representation - Cambridge,” 2008). Once seven candidates pass the quota, the election is over. Supporters of the

92 • Spring 2018


GEORGE WYTHE REVIEW

Single Transferable Vote system concede that it is a rather complicated system, but they believe it is a fairer one.

History of Proportional Representation in America

Despite its worldwide use, many Americans do not understand much about proportional representation. King commented that “since few Americans could even explain how the Electoral College works, they are probably not going to learn STV any time soon” (King, 2000, para. 26). These are relatively bleak assessments of the American ability to change its voting system. However, there should be some cause for optimism when it comes to proportional representation in the United States, because it has already been done. Proportional representation first appeared in the United States in the early twentieth century. While the Progressive Movement primarily focused on issues such as women’s suffrage and child labour laws, the movement also highlighted the need for government reform. During that time period, party machines like Tammany Hall were very powerful, winning almost all the seats on city councils with only 50-60 % of the vote. One of the changes that Progressives pushed to reduce the power of those political machines was proportional representation (Amy, 1996). The main group promoting proportional representation, the Proportional Representation League of the United States, was founded in 1893. They endorsed the Single Transferable Vote system and, in 1912, shifted their focus from adopting proportional representation on the national level to adopting it on the city level. At the city level there were fewer legal obstacles to the new system because proportional representation could be established through popular referenda instead of through a long and arduous constitutional amendment process. In 1915, Ashtabula, Ohio became the first American city to adopt STV. Ashtabula was followed by a few other small cities before Cleveland and Cincinnati followed in the 1920s. In 1936, New York City voted to adopt STV, increasing national interest in the concept. At its peak, twenty-four cities were using proportional representation for their elections (Amy, 1996). Despite initial success implementing STV, the voting systems in all of these cities except Cambridge, Massachusetts, eventually shifted back to plurality electoral systems. Opponents of STV are quick to point to this abandonment as evidence of failure. However, Amy (1996) argued that there were four explanations for the fall of STV in the United States that had nothing to do with the effectiveness of the system. First, politicians and parties who had been ousted by the effects of proportional representation fought to see it overturned. As will be discussed later, proportional representation resulted in many politicians and parties losing power. In Michigan and California specifically, political parties convinced the courts to rule that STV was against the state constitutions. In other cities, the very same popular referenda that

Spring 2018 • 93


GEORGE WYTHE REVIEW

were initially used to establish STV were used to remove proportional representation. If the first referendum failed, the well-funded opposition would finance more referenda until STV was overturned. A good example of this is Cleveland, where five referenda were sponsored until STV was finally repealed (Amy, 1996). Second, the supporters of proportional representation were poorly funded and incapable of defending STV, especially in contrast to the well-funded and motivated opponents of proportional representation. The Proportional Representation League of the United States lost support and funding over the years until, in 1932, it had to merge with the National Municipal League, an organization that worked to get rid of corrupt political machines. As a result, each of the political coalitions pushing for STV in individual cities were on their own. Over the years, the leaders of these coalitions died or lost interest, meaning that there was not much opposition to the referendum to repeal STV. Only two such political coalitions remained: the Charter Committee in Cincinnati and the Cambridge Civic Association. The city of Cincinnati eventually fell despite the efforts of the Charter Committee, but the city of Cambridge, as mentioned previously, remains the only city in the United States still using STV (Amy, 1996). Third, many groups were opposed to the minority representation that came as a result of STV and therefore supported the repeal efforts. In the early to mid 1900’s, minority representation was a contentious issue, since many white Americans were not ready to have African Americans representing them. In Cincinnati, for example, two African Americans were elected to the city council in the 1950s as a direct result of their adoption of STV. In a backlash to this event, STV opponents brought up a new repeal campaign, asking voters if they wanted a “Negro mayor” (Amy, 1996, para. 21). That argument resonated with the voters, and the resolution to repeal the STV system was passed by a large margin (Amy, 1996). Fourth, STV allowed for more representation from fringe groups, including Communist groups, that Americans were fearful of during the Cold War. In New York City, several Communists were elected to the city council after the city switched to STV. When the Cold War began, opponents used their election to campaign against against STV, claiming that it was a “political importation from the Kremlin” and “the first beachhead of Communist infiltration in this country” (Amy, 1996, para. 22). Despite the lack of any institutional connection between STV and Communism, the smear campaign worked, and proportional representation was swiftly repealed in New York City. The well-publicized defeat of STV in New York City led many other cities to follow suit. By the turn of the century, Cambridge, Massachusetts, was the only city still using the Single Transferable Vote in America (Amy, 1996). Many claim that the systematic repeal of STV only decades after its adoption proves that it has failed. Amy (1996) disagreesd, arguing that the repeals actually

94 • Spring 2018


GEORGE WYTHE REVIEW

prove it succeeded. It succeeded at ousting corrupt political machines. It also succeeded at providing representation to people groups that were previously underrepresented. The ousted party bosses and politicians fought for STV’s repeal because it was successful, and the racists and fear mongers fought for its repeal because it was successful at increasing diversity in legislatures (Amy, 1996).

Statistical Results of Proportional Representation in the United States

Proportional representation in the United States was relatively limited in scope. As previously noted, there were only twenty-four American cities with an STV election system adopted at the height of the movement. No government higher than the city level has adopted STV, although New York City’s brief adoption of the system was a highlight (Amy, 1996). As a result, there have not been many studies concerning proportional representation. Barber (1995) conducted an extensive case study of five Ohio cities that adopted STV in the early 1900s: Ashtabula, Cleveland, Cincinnati, Hamilton, and Toledo. This study takes many different sources into account, including daily newspapers from the cities, biographies of reform leaders, surviving campaign pamphlets, journals and magazines such as the Proportional Representation Review, encyclopedias of the period, and interviews with former participants. Most importantly, Barber studied official voting records of proportional representation elections in Ohio. In her study, Barber examined STV’s impact on representation, political machines, the party system, political stability effective votes, and voter turnout. First, Barber (1995) found that STV provided much more accurate representation than single-member district systems. She found that single-member districts tended to give more seats to the largest party and fewer seats to the smaller parties, while STV tended to more divide the seats among the parties more equitably based on the actual distribution of the votes. Examples of these trends can be seen in the cities of Cincinnati and New York (Figures 2 and 3).

Spring 2018 • 95


GEORGE WYTHE REVIEW

Figure 2. Effects of STV on representation in Cincinnati (Barber, 1995).

Figure 3. Effects of STV on representation in New York City (Barber, 1995).

96 • Spring 2018


GEORGE WYTHE REVIEW

As can be seen in the above graphs, STV led to more accurate representation on party lines. It also led to greater racial and ethnic representation. Irish Catholics and Polish Americans were elected in Ashtabula and Toledo, respectively, for the first time. In Cincinnati, Hamilton, and Toledo, African Americans were elected to city councils during their years of STV. African Americans had not been elected in these cities before the adoption of STV and would not be elected for many decades after STV was repealed (Barber, 1995). Second, Barber discovered that STV had some impact on taking power away from political machines. Cincinnati especially transformed from a city known for corruption to one with integrity and little control by political machines. In many cities, STV did not take away the majority of seats from the dominant party. However, even those cities saw their political machines weakened as independent candidates were able to run for their parties on principle and not be beholden to party leaders (Barber, 1995). Third, Barber (1995) analyzed the effects of STV on the American party system in the cities. In the five Ohio cities studied, stable two-party systems remained intact. In most cities, the Democrats and Republicans were the two major parties, while Cincinnati elections were contested by the Republicans and the Charter Committee. Only one city, Ashtabula, had one minor party candidate win an election: a Socialist in 1915. New York City, on the other hand, had a multi-party system under STV. In this system, the Democrats and Republicans were joined by the American Labor Party, the Fusion Party, and the Communist Party. In the end, Barber concluded that STV did not favor a two-party or multi-party system but instead produced one that reflected the makeup of the individual cities. Fourth, Barber (1995) studied the effects of STV on political stability in the cities. The same people who feared that STV would undermine the two-party system also argued that it would lead to a fractured political system because it would lead to bloc voting and political pluralism. As a result, they argued, city councils would be crippled by conflict. Barber did note more diversity and some bloc voting (but not significantly more than before STV was implemented). However, she found “no systematic evidence of greater dissension on PR elected councils compared with councils elected by other means” (Barber, 1995, p. 305). Fifth, Barber (1995) found that STV increases the number of effective votes and reduces the number of wasted votes. Effective votes are ones that actually elect a candidate to office, and the increase of these votes due to STV can be seen in Cincinnati and Cleveland (Figure 4).

Spring 2018 • 97


GEORGE WYTHE REVIEW

Figure 4. Effects of STV on effective votes in select cities. Sixth, Barber (1995) looked into STV’s effects on voter turnout, expecting it to result in higher voter participation. Surprisingly, despite the much higher amounts of representation and effective votes, there seemed to be little correlation between the adoption of STV and voter turnout. Some may argue that the benefits were countered by confusing ballots and vote counting procedures, but Barber concluded that “the emergence and disappearance of local issues and candidates appear to have had more to do with the act of voting than did the form of the ballot” (Barber, 1995, p. 295). Another possible reason for the lack of change could be the fact that city elections are not very popular to begin with. Those who vote in city elections may be devoted enough to the system to vote no matter what electoral system is used. It would be interesting to see if voter turnout is influenced by adopting proportional representation on a larger stage. Barber’s conclusions from her research of Ashtabula, Cleveland, Cincinnati, Hamilton, and Toledo were generally in favor of the use of STV. The system led to more accurate representation for parties and minorities. It took power away from political machines while not unduly influencing the party system or destabilizing the city councils. In addition, it reduced the number of wasted votes by increasing effective votes. Surprisingly, all this had little to no effect on voter turnout.

Criticisms of Proportional Representation

The concept of proportional representation is not without its detractors,

98 • Spring 2018


GEORGE WYTHE REVIEW

especially in the United States. Intellectual figures such as Thernstrom (1999), a Senior Fellow at the Manhattan Institute, and Norton (1997), Professor of Government at the University of Hull, and many others have vehemently opposed proportional representation over the years. As time has passed, many familiar arguments have been used to criticize this electoral system. These criticisms include the fact that proportional representation gives an undue amount of representation to extremist groups, it takes away from the idea of local representation, allows a minority party too much power through coalitions, and balkanizes American politics. They also proffered specific reasons to reject party list and Single Transferable Vote systems. However, the research indicates that many of these arguments are ill-founded and the supposed difficulties of proportional representation are surmountable. First, proportional representation is criticized because it gives an undue amount of representation to extremist groups like Communists and socialists. Opponents argue that under a single-member constituency, these groups are never given the opportunity to elect representatives. Hallett and Hoag (1940) disagreed: “If an extremist group does have a substantial part of the votes, denying it representation is as silly as an ostrich’s sticking his head in the sand” (para. 19). They went on to argue that “the best way to discredit a fool is to hire him a hall” (Hallett & Hoag, 1940, para. 22). Either way the people win, because if he is actually a fool, he will be discredited. But if the “extremist” is a wise man ahead of his time, the best thing to do is to elect him (Hallett & Hoag, 1940). Amy agreed with Hallett and Hoag. Amy (n.d.) stated that historical evidence provides no cause for concern. A large portion of European countries have been using proportional representation for fifty years, and due to threshold levels for participation (5% in Germany, for example), many fringe groups have difficulty winning seats. In addition to this, Amy (n.d.) argued that allowing a few members of extreme groups into the legislature has a moderating effect on those groups without granting them too much political power. Second, people criticize proportional representation for taking away from the idea of local representation. For them, the link between constituents and representatives in single-member districts is important and will be destroyed by any form of proportional representation. John Stuart Mill (1861) responded to this argument in Representative Government: Towns and counties, it may be presumed, are represented when the human beings who inhabit them are represented. Local feelings cannot exist without somebody who feels them; nor local interests without somebody interested in them. If the human beings whose feelings and interests these are have their proper share of representation, these feelings and interests are represented in common with all other feelings and interests of those persons. But I cannot see

Spring 2018 • 99


GEORGE WYTHE REVIEW

why the feelings and interests which arrange mankind according to localities should be the only one thought worthy of being represented; or why people who have other feelings and interests, which they value more than they do their geographical ones, should be restricted to these as the sole principle of their political classification. (p. 97) Third, it is argued that proportional representation will give a minority party too much power through coalitions. Amy (n.d.) gave the following example: “if one large party wins 42% of the seats and another 38%, and a small party wins 20%, that gives the small party the balance of power and puts it in the position of ‘king-maker’” (para. 9). In this situation, the small party chooses the winner of the election rather than the people. Amy (n.d.) argued that this is not as much of an issue as opponents to proportional representation say, since the minority party only forms coalitions with a party other than the majority party 12% of the time. Hallett and Hoag (1940) agreed with Amy, pointing out that in single-member constituencies, the minorities do their bargaining before the election through preventing certain pet-issues from being raised at all. Instead of having issues ruled out of discussion before the representatives are elected, Hallett and Hoag (1940) preferred the compromise and bargaining done by elected individuals who accurately represent the people. Fourth, many argue that proportional representation would balkanize American politics, fragmenting society into warring political factions. They argue that our society already has huge political, racial, religious, and economic divisions. Due to this, we need a political system that brings us together, rather than tearing us apart. Amy (n.d.) disagreed, saying that proportional representation encourages dialogue and negotiation, just at a different part of the process. Amy (n.d.) said: In a two-party system, negotiations usually take place before the elections. During party conventions and primaries, the various groups in umbrella parties try to settle their differences and build an electoral coalition. In a multiparty PR system, the political bargaining takes place in the legislature after the election. After the various political groups elect their representatives, then they engage in negotiation and coalition building.” (para. 14) As mentioned previously, there was no systematic evidence of greater dissention in the city councils elected via proportional representation in the Ohioan cities that Barber (1995) studied. The main criticism of the party list system is that people vote for party slates rather than for individual candidates. Opponents argue that Americans are used to choosing individuals rather than parties because it allows them direct control over who is elected and gives them the chance to oust individual candidates that

100 • Spring 2018


GEORGE WYTHE REVIEW

are not following the public’s wishes. This would be true if the parties picked the candidates rather than having a primary, but expecting there to be no primary in the parties for party list systems is just as ridiculous as expecting the parties to choose the candidates for single-member constituencies (Amy, n.d.). The main criticism specific to the Single Transferable Vote system is that a portion of peoples’ secondary votes are not considered. If one considers the quota system carefully, it becomes immediately apparent that all the voters that vote for a candidate before they reach the quota do not have their second choice vote counted. However, those who voted for the same candidate and were counted after the candidate reached the quota do have their second choice vote counted. In the example used when explaining STV, if 60,000 people voted for a certain candidate, then only the first 39,040 votes would count toward the candidate while the remaining 20,960 votes would contribute to the election of another candidate as well. Effectively, the first half of the voters would not be able to influence the election as much based off pure chance. Proponents of proportional representation may counter that, in any election of such a size, the randomly selected votes will tend to support the same secondary candidates before and after the quota. However, there is a solution for those those that still struggle to support a voting system based on such an element of randomness. After the quota is surpassed, the counters could simply count the remaining number of votes for the candidate that passed the quota and then apply the proportions of second choices for all his votes to that number. For example, in the case previously mentioned, in which 60,000 people vote for Candidate 1 and the quota is 39,040, this would be the number of votes distributed to secondary candidates:

Figure 5. Proportional allocation of secondary votes in an STV system using the example from Loudon County. Here, the number of votes transferred to each of the secondary candidates adds up to 20,960, which is the remaining number of votes that Candidate 1 had to distribute. Using this system, the votes can be transferred fairly and accurately. These academic criticisms are joined by a widely held belief that proportional representation is too complicated and confusing for American voters to understand.

Spring 2018 • 101


GEORGE WYTHE REVIEW

King (2000) agreed with this assessment. John Stuart Mill (1861) disagreed, arguing, “Among the ostensible objectors…some profess to think the plan unworkable; but these, it will be found, are generally people who have barely heard of it, or have given it a very slight and cursory examination” (p. 97). Statistics must win out over speculative arguments, and Barber’s (1995) study of the five cities in Ohio indicated that Americans were not confused by the new STV ballots since there was little correlation between the adoption of STV and voter turnout.

Conclusion Would proportional representation solve the problems that American voters have with the current system? Would it solve issues like the inadequacy of a twoparty system or the self-serving congressional electoral system? Barber’s (1995) study of cities in Ohio is strong evidence that proportional representation gave more representation to minorities and other parties. In addition to this, the STV system frequently ousted the corrupt political machines and institutions that controlled many cities. But would this work on the national level as well? Or would the problems that critics of the system raise become more apparent at a larger scale? Obviously, it is difficult to make national conclusions based on the data from a few small cities. The experiments with proportional representation in the United States have been localized and small-scale. More research should be done to provide policymakers with a complete picture. However, the successes of STV on a small scale should encourage other municipalities to adopt proportional voting systems, which will give researchers more examples and datasets to work with. Perhaps, over time, researchers will be able to make more sweeping conclusions about the prospects of European voting systems in state and national American elections.

102 • Spring 2018


GEORGE WYTHE REVIEW

Reference List Amy, D. J. (n.d.). Common criticisms of PR and responses to them. FairVote. Retrieved from http://www.fairvote.org/common_criticisms_of_pr_and_ responses_to_them Amy, D. J. (1996). The forgotten history of the single transferable vote in the United States. Representation, 34(1), 13-20. Barber, K. L. (1995). Proportional representation and election reform in Ohio. Columbus, OH: Ohio State University Press. Frequently asked questions. (n.d.). Loudoun County Government. Retrieved from https://www.loudoun.gov/faq.aspx Hallett, G. H., Jr., & Hoag, C. G. (1940). Chapter 5: Objections to PR. Proportional representation: The key to democracy (2nd ed.). Retrieved from http://www.fairvote.org/proportional_representation_the_key_to_ democracy Hertzberg, H. (2004). Politics: Observations and arguments, 1966-2004. New York, NY: Penguin Press. Jeffrey, J. M. (2016, September 30). Americans’ desire for third party persists this election year. Retrieved from http://www.gallup.com/poll/195920/ americans-desire-third-party-persists-election-year.aspx King, C. (2000). Electoral systems. Georgetown University. Retrieved from http:// faculty.georgetown.edu/kingch/Electoral_Systems.htm Mayhew, D. (2004). Congress: The electoral connection (2nd ed.). New Haven, CT: Yale University Press. Mill, J. S. (1861). Representative government. Kitchener, Ontario: Batoche Books. Norton, P. (1997). The case for first-past-the-post. Representation, 34(2), 84-88. Proportional representation. (n.d.). In Encyclopedia Britannica. Retrieved from https://www.britannica.com/topic/proportional-representation

Spring 2018 • 103


GEORGE WYTHE REVIEW

Proportional representation - Cambridge. (2008). Institute for Local Self-Reliance. Retrieved from https://ilsr.org/rule/voting-systems/2168-2/ State & federal legislators. (n.d.). Loudoun County Government. Retrieved from https://www.loudoun.gov/index.aspx?NID=134 Thernstrom, A. (1999). Proportional representation: Destabilizing idea. FairVote. Retrieved from http://www.fairvote.org/proportional_representation

104 • Spring 2018


GEORGE WYTHE REVIEW

HIDDEN ADVOCACY: HOW NGOS CAN USE BUREAUCRACY TO PROTECT RIGHTS IN AUTHORITARIAN REGIMES

Thomas Siu Abstract Nongovernmental organizations (commonly known as NGOs) are often very effective at advocacy in Western nations, where they enjoy the freedom to advance a wide range of policy goals through legislation, litigation, and the regulatory process. However, NGOs in repressive states can have a more immediate and visible impact on quality of life and respect for human dignity than their counterparts in the West might have. Of course, working in authoritarian states necessarily brings with it a different set of challenges. NGOs in repressive states face a variety of external threats, including legal hurdles, harassment, physical violence, forced disappearance, and even assassinations. This study examines the challenges NGOs face in authoritarian states and how those NGOs engage in effective advocacy within foreign bureaucracies to advance their goals. It also examines and compares alternative approaches and strategies employed in different nations, paying significant attention to the case study of public interest law in China, while also considering other issues NGOs face, such as funding, integrated activism, and the risks of advocacy. The study concludes that in more open environments, integrated activism is most effective, while in more repressive states, a focus on advocacy directed at the bureaucracy is likely to strike the ideal balance of safety and effectiveness. ___________________________________

Spring 2018 • 105


GEORGE WYTHE REVIEW

Introduction Imagine living in a world where government officials can act with near impunity, routinely holding show trials based on manufactured criminal charges, detaining those who find themselves on the bad side of bureaucrats, and disregarding basic human dignity. For a substantial proportion of the world’s population, this is no thought experiment—it is their reality This is the world Chen Guangcheng lived in and fought against. Chen Guangcheng is a blind, self-taught lawyer in China who brought attention to forced abortions and sterilizations, abuses of persons with disabilities, and environmental pollution. Mr. Chen is one of many so-called “barefoot lawyers” in China who fight against injustice and typically pay dearly for their involvement. Like others in what is sometimes known as the weiquan movement, Chen has served time in prison, been confined under house arrest, and been the victim of physical violence. Unlike most other activists in China, his efforts drew the attention and support of the international community, resulting in the United States granting him a visa and U.S. embassy personnel helping him escape his persecution (Daffer, 2006). Mr. Chen’s story is not atypical of activists who seek to improve the lives of their fellow countrymen in totalitarian states. Homegrown activists who rise to prominence are typically stamped out before they can produce lasting change. Thus, larger organizations have the potential to outlast any one activist and provide more effective long-term advocacy. These organizations offer the advantages of long-term interactions with the institutions of government in a state, have greater resources for advocacy, and can mobilize large numbers of supporters to create external and internal political pressure on repressive nations. This study attempts to discern the most effective strategies for advocacy in authoritarian regimes by examining and comparing different approaches. It draws its foundation from Li, Lo, and Tang’s (2016) analysis of non-governmental organization (NGO) advocacy in authoritarian China, and seeks to expand on their research by including additional nations and additional NGO types. Since Li et al., focused on environmental policy advocacy, their focus may not be immediately applicable to advocacy aimed at protecting human rights, so this study departs from their analysis to instead focus primarily on advocacy by NGOs dedicated to protecting human rights and advancing social issues.

Literature Review One widely accepted definition of advocacy is “any attempt to influence public policy and practice or any other decisions of institutional elite” (Casey & Mehrotra, 2011, p. 1). The study of NGO advocacy has been slowly increasing since the turn

106 • Spring 2018


GEORGE WYTHE REVIEW

of the century. Current existing literature often focuses on NGO advocacy either in the context of a Western, democratic nation (Guo & Zhang, 2014) or in the context of international organizations like the United Nations or the World Bank (Ahmed, 2011). Unfortunately, this means there is comparatively little literature examining how NGO’s impact society in non-western contexts or nations where governments are not democratic. Most of the literature that examines the role of NGO advocacy in countries with authoritarian governments focuses on topics such as environmental protection, with lesser amounts of scholarship dedicated to topics like the protection of women. Because of the dearth of scholarship in this area, researchers are often unsure whether NGOs in authoritarian environments seek to avoid activities that are likely to cause political trouble (Li et al., 2016). This seemingly basic understanding of NGO operations under authoritarian regimes is largely missing from current scholarship, and this study seeks to fill that void by providing an analysis of these riskier forms of advocacy. Heurlin (2010) is the notable exception to the rule that little research exists evaluating the role of NGOs in authoritarian nations. Heurlin (2010) approached the issue from a governmental viewpoint and argued that dictatorial governments typically adopt one of two approaches toward NGOs: either a corporatist strategy of co-opting NGOs into serving state functions or an exclusionary strategy of creating state institutions to exclude NGOs from the market for influence. While this research is useful for developing a theoretical foundation for understanding the relationship between dictatorships and NGOs, it is not particularly applicable to NGOs attempting to understand how they can best advocate for their causes in nations ruled by authoritarian regimes. Some authors argue that effective NGO advocacy begins with collaboration with international organizations. Munger (2008) suggested that international agencies provide the top-down approach that can make national-level impact, while NGOs typically provide support for grassroots efforts. Others take this further by examining the different ways that NGOs could interact with these so-called international organizations (Ahmed, 2011). While collaborating with organizations such as various United Nations bodies may help NGOs promote their agendas, the precise interactions that might yield the best results are beyond the scope of this study, which seeks to evaluate NGO relations with authoritarian governments themselves rather than with international organizations. Many authors examine the impact of public interest law and the role of legal activism in NGO operations. One set of authors argues that the modern human rights movement increasingly uses international law to bring external challenges to authoritarian regimes (Cummings & Trubek, 2009). This should be distinguished

Spring 2018 • 107


GEORGE WYTHE REVIEW

from the domestic activists who bring challenges to state action in their own nation – though of course the distinction can be eroded as “transnational advocacy” increases (where domestic activists connect with Western funders, media personalities, and lawyers) (Cummings & Trubek, 2009). Of course, a significant difficulty facing a comparative examination of NGO advocacy in different nations is that the practices being evaluated may not be similar (Munger, Cummings, & Trubek, 2013). This may be even more true when addressing political and legal issues – while the environmental protection issues on which scholars like Li et al. (2016) focus are obviously not uncontroversial, activism aimed at different legal or political systems seems at first glance to be more complex and nuanced. Additionally, the differences in governmental structure between nations may result in intra-state advocacy being different across borders, as the structural components may be quite different. However, authoritarian governments rarely seem able to counter an NGO’s activism, perhaps because these governments tend to be highly regimented and structured. Ondrusek and Labath (1997) argued that the typical authoritarian response is merely to find out who leads a given NGO and remove him or her. However, such efforts often fail because NGOs are rarely arranged on hierarchical principles, so intimidation of its leaders will have little effect. Much like individual terrorist cells, successful NGOs are motivated by a driving ideology more than a single individual. Li and O’Brien (2008) argued that protest leaders (whether deliberately or accidentally) “shape individual grievances into collective claims” as they frame that grievance into a movement that is actionable and can motivate rural villagers to participate in some collective action (pp. 5-6).

Data and Methods This paper provides a primarily qualitative evaluation of NGO advocacy in authoritarian nations. Obviously, conducting a primary study of nonprofit activism in closed or otherwise repressive nations is nearly impossible because it would endanger researchers and attract attention and possible persecution towards the staff of the nonprofits being studied (Young, 2005), so this study performs secondary analysis, rather than any primary analysis. This study will also focus on circumstances where NGOs advocate for changes that pose a risk to the NGO and its staff, for if the NGO merely parrots the ideology of the ruling regime, it is not genuinely seeking reform of the state but is instead collaborating with that regime. In such a situation, there is simply no need for activism. To perform this secondary analysis and glean lessons from the experiences of NGOs in authoritarian regimes, this study will examine the challenges presented by

108 • Spring 2018


GEORGE WYTHE REVIEW

various types of advocacy under various regimes to look for common threads. It will pay particular attention to the so-called ‘barefoot lawyer’ movement in China, where self-educated attorneys represent clients in human rights cases where most formallytrained Chinese lawyers fear to insert themselves. This study will depart from many other similar studies by focusing on advocacy related to human rights and abuses of human dignity. Therefore, other types of advocacy (such as environmental-protection advocacy) will receive attention only to the extent that they shed light on how NGOs can advocate for human rights. To perform this analysis, this paper will examine the success or failure of various NGOs in agenda-setting on both the domestic and international levels, in policy formulation and in policy implementation. It will also examine their respective methods and the costs associated with their activism (both in economic and human terms). Lastly, this study uses the term “authoritarian” as a general descriptor for a regime that has low tolerance for dissent and a low threshold for the use of violence in the political arena. It is not used here to refer to any particular political ideology, as far-left, centrist, and far-right governments could all conceivably be authoritarian, depending on how the regime responds to activism. Further, the mere fact that a regime does not suppress dissent in one area or at one specific time is not proof that the regime is not authoritarian--the term is also used to convey the idea that activists have a reasonable or well-founded fear of persecution for their beliefs or activism.

Research and Analysis Public Interest Law under Authoritarianism

Lawyers working to advance human rights and transitional justice in developing nations are few and far between, and they face significant obstacles and even personal risks to advance their causes (Munger et al., 2013). What the United States typically calls public interest law can take on different appearances in different nations, in no small part due to the differing legal traditions globally (Cummings & Trubek, 2009). The goal of individual activists can also matter a great deal in determining the approach that they take toward their attempts to combat injustice. For example, an activist must choose whether to work within his or her own domestic legal system, or decide that the legal system is so irreparably broken that only international attention and pressure can provide a solution. Activists attempting to appeal to an international organization (such as a treaty body, regional human rights court, or the United Nations) will necessarily have to adopt different tactics than activists seeking to spur internal reform. (Ahmed, 2011). Of course, these different approaches mean that NGOs can be more or less effective depending on which approach they take to accomplish their goals. If an NGO seeks solely to influence international organizations, it may be quite successful

Spring 2018 • 109


GEORGE WYTHE REVIEW

in building an international consensus against the behavior they wish to end, since many international organizations are favorable to NGO goals from the outset due to their shared goals of promoting human rights and transnational justice. Further, these international organizations lack the same threatening power of authoritarian states to punish activists, so activism is safer in the international community (Ahmed, 2011). Beyond initial fact-finding, this type of activism requires little to no formal interaction with the ruling regime, so activists are generally protected from harm at the hands of government officials. This relative safety seems to result in NGOs taking more lobbying action toward international organizations than toward governments (Ahmed, 2011). But the relative safety and ease of this approach also has a significant drawback namely that without the coercive power to do evil, international organizations also lack the coercive power to do good. The same safety that makes international organizations easy to influence also means that their power is largely toothless, as they cannot compel states to comply with their directives. Even the imposition of sanctions by the international community is no guarantee that the state will modify its conduct, particularly considering that some countries that engage in human rights abuses are willing to accept their status as international outcasts without too much internal angst (Haass, 1998). Therefore, to accomplish internal reform, activists must work within their internal governmental systems and turn against the government its own most valuable tool – the bureaucracy. Li et al. (2016) noted that even though authoritarian regimes may be largely intended to act as extremely structured, centralized, and cohesive units, they are instead more often fragmented, which creates breathing space for NGOs to engage in effective advocacy. Where a bureaucracy becomes so large as to render it unwieldy and difficult for a central authority to effectively control, lower-level officials may be the first step to gaining influence over the organization. Once lower-level officials have been conditioned to operate in a certain fashion, higher-level officials may be brought under the influence of the NGO’s advocacy tactics, which will also be aided as lower-level officials are promoted through the bureaucratic ranks. In addition to attempts to co-opt the bureaucracy, NGOs can also engage in more traditional activism. NGOs in authoritarian states have successfully engaged in direct discussions with relevant government officials, lobbied for policy changes with the appropriate authorities, and mobilized citizens to demonstrate against or in favor of certain state actions (Li et al., 2016). These measures can have varying degrees of success, depending on the aggressiveness of the state in shutting down dissent on the selected political issue, even up to the forced disappearances of reform-minded activists (Cummings & Trubek, 2009). It is in these situations that international organizations or NGOs outside the nation in question can use international pressure

110 • Spring 2018


GEORGE WYTHE REVIEW

to promote domestic change (Cummings & Trubek, 2009). This can in turn buy ‘breathing space’ for domestic NGOs and convey to the regime that the international community will look down upon suppression of dissent. The governmental response to NGO activity may depend in part on the precise nature of the regime in power. Heurlin (2010) argued that single-ruling-party regimes typically attempt to co-opt the activities of the NGO by creating some collaboration with various organs of the state. Yet, in regimes centered around one figurehead— what Heurlin (2010) labeled “personalist” regimes—the state typically attempts to exclude NGOs entirely and replace their activities with some state institution (p. 220). This suggests that the greatest danger for NGOs lies in these nations, since the state there has no incentive to treat the NGO with any level of respect. Indeed, in such a state, government agents have an incentive to abuse NGOs and their staff simply to push them out of whatever activities they currently participate in and make space for government programs. In a ruling-party regime, the same motivations may still exist if the NGO is unwilling to allow its services to be co-opted, but the incentive to simply crush dissent is restrained if government agents want to secure the assistance of the NGO. NGOs should consider the context of their work to better understand the risks they face. An NGO should consider what type of regime they face, the methodology of their activism, as well as their intended audience (whether it be domestic government or international organizations). They should also consider the experience of prior reformers from the same nation and which tactics have been successful in the past as they design a strategy to advance their interests. It also goes without saying that funding is a vitally important factor, to which this study now turns its attention.

Funding Challenges

One of the great dangers for NGOs that could be co-opted by the state is that the independence of their funding may be in jeopardy. As Li et al. (2016) observed, nonprofits that rely on government funding may be ill-prepared or unwilling to criticize government figures or take actions that could damage the relationships with government that a particular NGO already possesses. However, these same authors indicated that government funding could actually increase lobbying activities for nonprofits as those nonprofits seek to protect government funding from budget cuts (Li et al., 2016). The problem, though, is that this advocacy is then diverted away from the NGO’s main mission and toward attempts to procure and secure state funding, which is supported by research that suggests that increased levels of NGO dependence on state funding resulted in lower levels of political activity and advocacy (Schmid, Bar, & Nirel, 2008). Indeed, data suggests that NGOs that focus on providing human services “are reluctant to initiate political activity, because they

Spring 2018 • 111


GEORGE WYTHE REVIEW

are afraid that it will harm their income, which largely derives from the government” (Schmid et al., 2008, p. 586). This observation fits neatly within Heurlin’s framework of analysis when he argues that single-ruling-party regimes typically attempt to coopt NGO activity (Heurlin, 2010). If government funding can minimize the extent to which NGOs take positions opposed to the regime’s goals, that funding successfully neutralizes the threat the NGO poses. Government funding can also sow mistrust, so NGOs may wish to avoid it. Li et al. (2016) noted that government funding can lead to a strained relationship between the NGO and the government entity due to mutual suspicion, but this suspicion can also cross-apply to other advocacy groups and citizens. Acceptance of government funding may lead NGOs to be viewed with suspicion by the population and as potentially sellouts to the ruling regime. This may in turn undermine the ability of those NGOs to effectively organize activism that requires the support of the general population, such as any form of organized protest or communication campaign. Restricting funding by regulation or prohibition is one of the most significant methods authoritarian regimes may use to restrict NGO activism (Munger et al., 2013). Even where private funding is concerned, most closed societies greatly restrict funding for NGOs that engage in legal activism (Munger et al., 2013). In part due to these funding problems, most civic NGOs in China have few staff members and extremely limited resources, so most of their activity is carried out by volunteers or part-time staff members (Li et al., 2016). While large global funding networks can provide access to significant infrastructure, authoritarian governments have closed off these funding avenues periodically to exercise control over NGO activity, such as when Bangladesh in 2011 froze funding for NGOs that opposed the prime minister’s political party (Munger et al., 2013). Additionally, governments can easily restrict international funding by banning transfers of funds. The international community may even view this as legitimate, especially if the government claims it is doing so to avoid interference in its domestic political processes. Thus, an NGO may be unable to accept large-scale international funding because it is expressly prohibited by the government. Likewise, accepting that funding would impose domestic compliance costs so high that the NGO simply cannot afford to devote the time and resources to maintain their legal status. Furthermore, the governing regime may so severely restrict the use of such international funding that it becomes almost useless to the NGO. NGOs may also be wary of accepting outside funding because it may pose a risk of losing control over their own organization and mission. Several authors point out that small, grassroots NGOs with more control over their organizations are more connected with the ground-level problems that exist in their societies, whereas large-

112 • Spring 2018


GEORGE WYTHE REVIEW

scale advocacy organizations may not be as targeted. Kelley (2011) pointed out that many African NGOs are criticized as being “out of touch with grassroots concerns,” in part because they tailor their activities to Western donors rather than to the needs of their communities (p. 1001). Another element may be that larger NGOs are often run by elites, who are typically more Western-oriented in their thinking (Kelley, 2011). This Western orientation of some NGO leaders may also make the general public more opposed to their activities if they see their advocacy as “an unwanted American export, a tool of social control” (Cummings & Trubek, 2009, p. 4). The focus on acquiring funding may also cause NGOs to become “accountable ‘upward’ to donors rather than ‘downward’ to beneficiaries” (Banks, Hulme, & Edwards, 2015, p. 709). The diverse motivations of larger organizations dependent on Western funding and grassroots NGOs may create conflicting priorities among cooperating NGOs, which may also lead to advocacy being more fragmented and ineffective. Therefore, it would not be unprecedented for smaller, more activism-minded NGOs to refuse funding and assistance from larger NGOs, foundations, or international organizations as part of a deliberate attempt to maintain greater autonomy. Obviously, no NGO can operate without funding. But for NGOs concerned with human rights advocacy, it seems clear that accepting government funding is likely to do nothing to advance an NGO’s mission, and can do much to undermine it. Government funding will be a substantial incentive not to push too hard against the ruling regime. Moreover, repressive governments can easily exploit this reliance to compel an end to an NGO’s activism without resorting to force and facing domestic or international blowback. The question of whether an NGO should accept international funding or funding from a larger NGO in the same country is a more difficult question. If the NGO can avoid dependence on international funding, it is likely to be able to retain its grassroots focus without having excessive exposure to the risk of the termination of this funding by state action. In a non-western context, it may be more beneficial for NGOs to rely on domestic funding sources in order to avoid being seen as pawns to impose Western values on the nation. However, these sources might also be restricted by the ruling regime or be unable to supply enough funds, and respect for human rights should not merely be confined to Western nations. Likewise, NGOs should choose funding sources that don’t compromise their mission or prevent them from promoting the cause of international justice.

Making the Most of Available Human Resources

In addition to organizational differences created by funding inequalities, larger and more organized NGOs are likely to engage in different kinds of advocacy than small groups of activists because of the differing human resources available to advance their respective causes. Individuals with specialized training in a particular

Spring 2018 • 113


GEORGE WYTHE REVIEW

field often work for larger NGOs, while independent activists are more likely to be self-trained. Additionally, it seems to follow that larger NGOs will be more protective of their substantial investment in highly-trained professional activists, while small NGOs will likely be willing to accept greater risks to activists. The available literature tends to support both of these assumptions, which are particularly visible in the context of public interest law in China. The Chinese legal system has become increasingly professionalized since market-based reforms in the early 1990s (Lo & Snape, 2005). This professional training begins with law school and requires the prospective lawyer to pass a qualifying examination similar to the bar examinations administered in the United States (Alford, 1995; Lo & Snape, 2005). In contrast to the typical Chinese lawyer, many public interest (or weiquan) lawyers are not actually licensed to practice law, as they instead simply take advantage of procedural rules permitting laymen to represent others in court (Fu & Cullen, 2008). Cheung conducted an interviewbased study of weiquan lawyers in China and observed a broad range of education, from just one year of middle school to a completed university degree. He also noted that they possessed significantly varying degrees of legal education, ranging from basic knowledge of one field of law, to comprehension of the equivalent of a diverse law school curriculum (Cheung, 2013). While some academics are often able to leverage their social status, relative political safety, and financial stability to support weiquan lawyers (Fu & Cullen, 2008), individual public interest lawyers still face many challenges. Local courts have significant entanglement with local Communist Party chapters, since the Party provides funding for the operations and salaries of the court (Daffer, 2006). A strong spirit of protectionism for local entities also makes it more likely that courts will rule against NGOs in lower-level court cases (Daffer, 2006). Further, as weiquan lawyers advance in their careers, they are likely to become increasingly radicalized against the Chinese authoritarian system, leading them to take increasingly confrontational stances on cases (Fu & Cullen, 2011). This path to radicalization may make them more inviting targets for state action. Besides issues which may impact case outcomes, there are also personal risks for public interest lawyers in the Chinese system. One study suggested that as many as 94% of Chinese lawyers had experienced some form of interference in their cases from a government entity or from the Communist Party (Young, 2005). This interference could come in many different forms, such as the arrest of Zhang Enchong, one of the country’s most prominent defense attorneys (Young, 2005) or the physical violence Chen Guangcheng experienced (Cheung, 2013). Regardless of the exact methodology, authorities reign in lawyers who threaten to disrupt the existing social order (Young, 2005).

114 • Spring 2018


GEORGE WYTHE REVIEW

When comparing the risks activist lawyers face against the cost and time invested in formally-trained lawyers, it seems self-explanatory why most of those who spearhead the weiquan movement are self-taught. NGOs seeking to protect their investments in human capital could thus understandably see the risks of employing formally-trained lawyers as too great, especially when compared against the limited pool of individuals willing to participate in the fight for human rights through domestic legal processes. As a result, most of the high-risk legal work is left to be performed by those without significant investments in legal training. However, this may not actually be a bad thing in certain cases--because the legal system is so prone to interference by the government and Party organs, legal questions may not factor into the final outcome very much in politically-oriented cases. Indeed, the Communist Party often awards judicial positions based on political support rather than on legal skill or expertise (because judges are not required to meet the same standards as lawyers) (Daffer, 2006).

Lessons in Effective Activist Methods

Even in authoritarian regimes with little respect for the rule of law, effective advocacy is possible. One of the most important lessons is that a multifaceted approach to advocacy is the most likely to be effective. In the context of public interest law and the weiquan movement, legal advocacy combined with purposeful interaction with the bureaucracy can produce results. In 2005, one of Chen Guangcheng’s most prominent cases arose after some 7,000 female Chinese peasants were the victims of forced abortions and sterilizations in the Shandong province. Mr. Chen filed suit on behalf of the victims, and surprisingly, the national-level bureaucracy allied with him and the National Family Planning Commission criticized the actions of local officials and promised an investigation (Daffer, 2006,). Indeed, this seems to be Mr. Chen’s most significant victory because of the international media attention the case obtained and because of the bureaucracy’s involvement and condemnation of the behavior of local officials. In other nations, the involvement of the bureaucracy is also significant. Thailand, classified by most as a semi-authoritarian state due to its history of military coups overthrowing civilian governments, has a strong bureaucracy that has been able to withstand changes in government and “holds many trump cards when it comes to the authority of law” (Munger, 2015, p. 6). This bureaucratic system can produce capable reformers in its own right, such as Dr. Saisuree Chukikul, who used her rise to the Thai cabinet to promote reforms to combat human trafficking and child abuse (Munger, 2015). Thai NGOs, such as the prominent Center for the Protection of Child Rights (CPCR), work to integrate their operations with multiple levels of the bureaucracy, from national-level policy advocacy to policy implementation through collaboration with low-level bureaucrats and local law enforcement

Spring 2018 • 115


GEORGE WYTHE REVIEW

agencies (Munger, 2015). This integrated approach is difficult, especially since the Thai bureaucracy is extremely insular, but it also produces more effective results at all levels of the policy process. This multi-level approach is necessary due to the frequent disconnect between the policy makers and the low-level officials tasked with implementing the policy shifts. Munger notes that despite the success Thai NGOs have achieved through the political process and convincing agency heads to adopt new initiatives to crack down on human trafficking, collaboration with local officials is vital because many local law enforcement officers are still unaware of recent changes to the law (Munger, 2015). Despite an overall favorable government, challenges still exist, which requires an integrated organization to overcome. Unfortunately, the Thai example of coordinated, multi-level advocacy seems impossible for the time being in China on most human rights policy issues, as the national-level government’s hostility toward public interest lawyers makes any such large, coordinated effort risky. However, Chinese NGOs have nonetheless adapted to meet the particular risks of advocacy in their country. By adopting a decentralized approach, risks are confined to individual activists rather than concentrated in an organization that could be broken up and defeated. Contrary to the assumptions of highly-centralized authoritarian regimes, most decentralized NGOs can survive the arrest or killing of an individual activist, but regimes rarely seem to be able to adjust to the flexible and dynamic nature of these NGOs (Ondrusek & Labath, 1997). Even in extremely dangerous environments for NGOs (such as China), advocacy through the bureaucracy can be particularly effective. While in theory the unitary structure of the Chinese government would suggest local governments have limited powers, in practice local governments have considerable autonomy because it is simply impossible for the national government to exercise effective control over the entire nation (Daffer, 2006). Thus, activists may have greater breathing room if they focus on their issue of choice in local government. Additionally, the Linyi abortion and sterilization case suggests that another factor may be present in successful advocacy under authoritarian regimes: providing the bureaucracy a way to save face. Mr. Chen’s advocacy in this case was focused on the actions of local officials, leading national-level bureaucrats to condemn the actions in question – and these national officials had an easy opportunity to do so, because they were simply able to portray the actions of local officials as violative of the national bureaucracy’s policy aims. Where advocacy can allow decision makers to easily deflect responsibility, perhaps a greater likelihood of success exists.

116 • Spring 2018


GEORGE WYTHE REVIEW

Conclusion Once a group of activists decides to pursue change through domestic legal and political channels, they must decide what precise methods to utilize. The research suggests that attempts to co-opt the bureaucracy can be particularly important to pursuing policy change in authoritarian regimes where traditional political channels may be unavailable or restricted. If the regime is more open, the integrated approach seen in Thai NGOs like the CPCR would be ideal. In addition to the organizational questions, NGOs must determine how they will receive funding. While many of the weiquan lawyers of China rely on their own personal funds (Fu & Cullen, 2008), outside sources of funding will be needed for any larger-scale operation. International funding may be restricted by the NGO’s home country, but even if it is not, international funding may be undesirable if the NGO thinks it may lead to conflicting goals or the potential that the NGO may be viewed negatively by the target population. Efficient human resources management will almost certainly continue to be an issue, especially since there are unacceptably high risks for most formally-trained lawyers to engage in advocacy in the most closed societies. In less repressive nations, formal training can equip activists to be more effective, but self-trained activists are likely to continue to be the norm for the most politically sensitive issues in nations like China. NGOs can apply three key principles to advocacy in authoritarian regimes. First, where possible, coordinated and multifaceted advocacy is the ideal system of advocacy. This allows NGOs to promote policy changes at the agenda setting and policy formulation stages while simultaneously overseeing the implementation of the desired changes. Second, because this multi-level advocacy may not always be possible, in those circumstances, NGOs should supplement their primary focus of advocacy with an emphasis on activism directed at the bureaucracy. Finally, advocacy that allows senior government officials to pass blame for undesirable actions on to lower-level officials provides those officials an easy way to save face, which is likely to lead to more favorable results. As activists like Chen Guangcheng demonstrate, even in authoritarian regimes, significant change is still possible with activists who are brave enough to risk personal danger to protect the rights of others. By learning from the successes of other NGOs, activists can take more effective actions to make the most of their opportunities to seek change. Through the continuous work of human rights activists, even those who live under authoritarian regimes can benefit.

Spring 2018 • 117


GEORGE WYTHE REVIEW

Reference List Ahmed, S. (2011). The impact of NGOs on international organizations: Complexities and considerations. Brooklyn Journal of International Law, 36(3), 817-840. Retrieved from https://brooklynworks. brooklaw.edu/cgi/viewcontent.cgi?referer=https://www.google. com/&httpsredir=1&article=1115&context=bjil Alford, W. P. (1995). Tasselled loafers for barefoot lawyers: Transformation and tension in the world of Chinese legal workers. China Quarterly, 141, 22-38. Banks, N., Hulme, D., & Edwards, M. (2015). NGOs, states, and donors revisited: Still too close for comfort? World Development, 66, 707-718. Retrieved from https://ac.els-cdn.com/S0305750X14002939/1-s2.0-S0305750X14002939main.pdf?_tid=fbfa6f72-04cd-41d7-ae0e-5a56eff26a85&acdnat=151993631 1_39dd450db53650fc2bd4d72122c47b58 Casey, J., & Mehrotra, A. (2011). Understanding nonprofit advocacy. Baruch College School of Public Affairs: Center for Nonprofit Strategy and Management. Retrieved from http://www.baruch.cuny.edu/mspia/centersand-institutes/center-for-nonprofit-strategy-and-management/documents/ BackgroundPaper_FINAL.pdf Cheung, T. M. D. (2013). Going barefoot in the Middle Kingdom: A preliminary study of the strategic choices of non-licensed Weiquan lawyers in modern China. Pacific Basin Law Journal, 31(1), 1-22. Retrieved from https:// escholarship.org/uc/item/9289078g Cummings, S. L., & Trubek, L. G. (2009). Globalizing public interest law. UCLA Journal of International Laws and Foreign Affairs, 13(1), 1-53. Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1338354 Daffer, T. (2006). “I am fighting for the right to eat, and I will keep fighting. The truth is on our side”: Class action litigation as a means of enacting social change in China. UMKC Law Review, 75, 227-243. Fu, H., & Cullen, R. (2008). Weiquan (rights protection) lawyering in an authoritarian state: Building a culture of public-interest lawyering. The China Journal, 59, 111-127. Retrieved from https://www.jstor.org/stable/20066382

118 • Spring 2018


GEORGE WYTHE REVIEW

Fu, H., & Cullen, R. (2011). Climbing the “Weiquan” ladder: A radicalizing process for rights-protection lawyers. China Quarterly, 205, 40-59. Retrieved from https://www.law.upenn.edu/live/files/2311-climbing-the-weiquanladder Guo, C., & Zhang, Z. (2014). Understanding nonprofit advocacy in non-western settings: A framework and empirical evidence from Singapore. Voluntas: International Journal of Voluntary and Nonprofit Organizations, 25(5), 11511174. Retrieved from https://www.jstor.org/stable/43654336 Haass, R. (1998). Economic sanctions: Too much of a bad thing. Brookings Institution. Retrieved from https://www.brookings.edu/research/economicsanctions-too-much-of-a-bad-thing/ Heurlin, C. (2010). Governing civil society: The political logic of NGO-state relations under dictatorship. Voluntas: International Journal of Voluntary and Nonprofit Organizations, 21(2), 220-239. Retrieved from https://www.jstor. org/stable/27928213 Kelley, T. A., III. (2011). Wait! That’s not what we meant by civil society!: Questioning the NGO orthodoxy in West Africa. Brooklyn Journal of International Law, 36(3), 993-1010. Retrieved from http://scholarship.law. unc.edu/cgi/viewcontent.cgi?article=1157&context=faculty_publications Li, H., Lo, C. W. H., & Tang, S. Y. (2016). Nonprofit policy advocacy under authoritarianism. Public Administration Review, 77(1), 103-117. Retrieved from http://onlinelibrary.wiley.com/wol1/doi/10.1111/puar.12585/full Li, L., & O’Brien, K. J. (2008). Protest leadership in rural China. China Quarterly, 193, 1-23. Retrieved from https://www.jstor.org/stable/20192161 Lo, C. W. H., & Snape, E. (2005). Lawyers in the People’s Republic of China: A study of commitment and professionalism. American Journal of Comparative Law, 53(2), 433-455. Munger, F. (2008). Globalization, investing in law, and the careers of lawyers for social causes: Taking on rights in Thailand. New York Law School Law Review, 53(4), 745-802. Retrieved from https://digitalcommons.nyls.edu/cgi/ viewcontent.cgi?article=1841&context=fac_articles_chapters

Spring 2018 • 119


GEORGE WYTHE REVIEW

Munger, F. W., Cummings, S. L., & Trubek, L. G. (2013). Mobilizing law for justice in Asia: A comparative approach. Wisconsin International Law Journal, 31(3), 353-420. Retrieved from https://papers.ssrn.com/sol3/papers. cfm?abstract_id=2456833 Ondrusek, D., & Labath, V. (1997). Conflicts in transforming society and the nongovernmental sector: The Slovak example. In R. Shonholtz & I. Shapiro (Eds.), Strengthening transitional democracies through conflict resolution. Thousand Oaks, CA: SAGE Publishing. Schmid, H., Bar, M., & Nirel, R. (2008). Advocacy activities in nonprofit human service organizations: Implications for policy. Nonprofit and Voluntary Sector Quarterly, 37(4), 581-602. Retrieved from http://www.thecyberhood.net/ documents/papers/nvsqarticle08.pdf Young, A. (2005). Current development 2004-2005: The continuing lack of independence of Chinese lawyers. Georgetown Journal of Legal Ethics, 18(3), 1133-1149.

120 • Spring 2018


GEORGE WYTHE REVIEW

George Wythe was one of the premier scholars in early American history. The first law professor in America, he was a strong supporter of the War for Independence and a zealous patriot. Many of America’s most influential leaders, such as Thomas Jefferson, studied under his guidance. Furthermore, as a framer of the Constitution, Wythe left a legacy that the United States still honors to this day. The George Wythe Review adopted his name in memory of his brilliant scholarship and in hopes that this journal might emulate Wythe’s dedication to our country.

Spring 2018 • 121


GEORGE WYTHE REVIEW

Acknowledgements The George Wythe Review would like to recognize the Collegiate Network for their contribution to the success of our publication.

122 • Spring 2018