LPSC 2301 (Quiz I) Northeastern

Cole: Strategizing

The incremental gains that preceded litigation not only made marriage equality more thinkable as a political matter, but actually undermined the state's arguments for denying marriage equality.

You have to pay attention to what is going on emotionally. You are unlikely to change anyone's mind with a purely rational argument.

Who is Frank Kemeny?

- After being fired by the US Army Map office after the FBI revealed that he was gay, he became one of the nation's first openly gay activists.

- After opening the Washington, D.C. branch of Mattachine Society, Kameny acted as a "lawyer without portfolio", helping hundreds of government employees in administrative appeals of their dismissals

Who is Evan Wolfson?

- Wrote "Same-sex Marriage and Morality: The Human Rights Vision of the Constitution"

- Drew on philosophy, liberal political theory, and constitutional and human rights principles to argue that the Constitution should protect the right of same-sex couples to marry

- Wolfson spent his free time working on gay rights cases and was eventually hired as a Gay Rights full-time lawyer by Lambda

- Wolfson founded the organization Freedom to Marry, which focused on tackling small but important steps on the road to marriage equality

Same-sex Marriage: Vermont

- Civil Unions legislation was passed making "separate but equal" status for same-sex couples → led to backlash when six legislators who supported civil unions lost in the primaries. Vermont became first state to legalize same-sex marriage via legislation rather than litigation

- Although a big milestone for this movement, Murray/ Robinson believed that only marriage would prove true equality

Phyllis Watts: Strategizing

You have to pay attention to what is going on emotionally. You are unlikely to change anyone's mind with a purely rational argument.

Same-sex Marriage: Hawaii

- Baehr v. Lewin in Hawaii was the first time a state Supreme Court had ruled that gay couples might have the right to marry and that the denial could be unconstitutional

- Received a lot of backlash (many states began passing laws denying the right of marriage to same-sex couples simply because of Hawaii's verdict/ DOMA)

Same-sex Marriage: Massachusetts

- Goodridge v. Dept. of Public Health established marriage equality in Mass, making it the first state to find that same-sex couples had the right to marry

- Like Vermont, MA knew that the key aspect of the strategy was to demonstrate that gay and lesbian couples were, with respect to marriage, no different from straight couples (media campaign)

Same-sex Marriage: California

- Overview: Mayor Gavin Newsom issued marriage licenses, which were deemed void by Supreme Court of California, but then state ban was overturned after consolidated lawsuits → Prop 8 then passed

- Proposition 8: ballot box ruling, eliminated right of same-sex couples to marry, passed in 2008 in California (eventually ruled unconstitutional in Perry v. Schwarzenegger because of lack of compelling state interest in justifying denying same-sex couples the right to marry)

- Stategy: Emotional approach changed more minds than rational human rights argument

- Lambda's role: Important in laying groundwork and creating templates for legislation

- Final ruling: Obergefell v. Hodges consisted of a group of six consolidated cases challenging same-sex bans in four states → Supreme Court legalizes gay marriage across US

Proposition 8

A statewide ballot proposition in California. On November 4, 2008, voters approved the measure and made same-sex marriage illegal in California.

There was a lot of backlash--other states passed stuff to make sure it didn't happen to them

Concept: "An idea whose time has come" (Kingdon)

Embodies how a movement can sweep over politics and our society, withstanding everything in it's path

Kingdon: The Policy Making Process

1. Agenda Setting

2. Agenda Setting and Alternatives

3. Information gathering

4. Decision making

5. Implementation

6. Evolution

7. Restructuring

Kingdon: Two categories of factors in agenda setting

1. The participants who are active

2. The process by which agenda items and alternatives become important

Kingdon: Agenda Setting Theory

Agenda setting is the first stage in the policy process. The policy agenda is the list of issues or problems to which government officials, or those who make policy decisions (including the voting public), pay serious attention.

Kingdon: Agenda-setting streams

- Problem Stream: Refers to the perception of problems

(indicators, events, comparisons, etc.)

- Policy Stream: Consists of experts and analysts examining the problems and proposing solutions.

- Political Stream: Composed of factors such as swings of national mood, administrative or legislative turnover, and

pressure campaigns of interest group.

coupling of the streams leads to a policy window

-probability of rising on the agenda is increased if all 3 streams are joined

windows open when

- problems "float" by that advocates can attach their policy solutions to

- the political stream is advantageous

Miller & Barnes: Interbranch Perspective in regards to Policymaking

- American Policymaking does not result from the edicts of any single branch of government; it emanates from interactions among the branches

- Challenges idea that elected politicians are the "principals" in the making of policy and unelected judges should be their faithful "agents"

- The American govt' features overlapping policymaking forums that both share and compete for lawmaking, law-interpreting, and administrating power. The American govt' is too complex to separate our institutions. Sharing power promotes core democratic values.

Stone: Theory

Policy Paradox: Distinguishes the market from the polis

alternative or complement to economics-based or rational choice theories that treat policy making and policy analysis as distinct from one another

- Market: social system in which individuals pursue their own welfare by exchanging things whenever trades are mutually beneficial

- Polis: individual interests are held in common, communal goals in the public interest

Stone: Goals for public policy

- Equity/Equality (who gets what, when and how)

- Efficiency

- Security

- Liberty

Problem - Indicators

A study, such as crime rates rising

Problem - Focusing Event

School shooting, hurricanes, etc.

Problem - Pressure of social movements of political opinion

Gay marriage, civil rights, etc.

Term: The Rational Model

1. Problem Identification (Agenda setting which shapes the research)

2. Policy formulation (goals, problems, solutions)

3. Policy adoption

4. Policy implementation (many ways for this to go wrong)

5. Policy evaluation (maintenance, succession, termination)

Stone: Policy Entrepreneurs

Policy makers who help introduce and implement new ideas into public practice (e.g. administrative officials, legislators, nonprofits)

Stone: How do people address problems?

- With symbols (collectively created)

- With numbers (

- By attributing causes

- By claiming interests

- By relying on decisions

Stone: Four Aspects of

Symbolic Representation

- Narrative Stories

- Synecdoche (figures of speech "in which a part is used to represent the whole.")

- Metaphors

- Ambiguity—a crucial feature of symbols in politics

Stone: Examples of a narrative story

- Stories of decline or of progress halted

- Stories of helplessness and control

- Conspiracy stories

- Blame the victim stories

- Stymied progress stories

- Stories about how bad things happen

- Horror story

Stone: Types of Metaphors

- Machines and mechanical devices

- Wedges and Inclines (e.g. slippery slopes, ladders)

- Containers (Spill overs, glass half empty)

- Contagious disease (symbolizes deterioration and decline)

- War (war on poverty, war on drugs, war on cancer)

Stone: Examples of numbers

- The decision to count something is a highly political act

- Sometimes we choose not to count things because of the political implications of the data

- Sometimes numbers are only partial measures

Term: Adversarial Legalism

Mode of governance where legal contestation is used to create and implement policy

Term: Common Law

When courts make decisions based on precedent, or judicial decisions that have already been made in similar cases

Term: Constitutional Adjudication

Authority of courts to hold legislative statutes and executive branch decisions unconstitutional (judges often make policy)

Term: Separation of Powers

Creates specific niches for each branch of government in policy making process

- Congress should write law

- Executive branch should implement the law

- Courts should apply the law as written

Term: Preemption

Federal government, through Congress, can overpower state laws or preclude states from enacting laws on the same subject (e.g. equal marriage ruling overpowers individual state laws, North Carolina's transgender laws apply to the entire state regardless of Charlotte's laws)

Term: Policy Problem

Condition that causes people distress and for which relief is sought through government action (e.g. climate change, immigration)

Term: Backlash

Adverse reaction against the government in response to a political move

Term: Government Overreach

Government controls, regulations, laws, etc. with a guise of another intention (e.g. spying on Americans to protect against terrorism, DOMA)

Term: Incrementalism

Strategic approach to achieving goals through small step-by-step changes rather than radical changes (made marriage equality more thinkable and undermined state's arguments for denying marriage equality)

Cairney: Policy Cycle

A way to organize policymaking in a cycle model

- Prescription: model for how policymakers should operate

- Description: model to describe how they do operate

Concept: Spotted Owl Controversy

Environmentalists litigated against the Fish and Wildlife Service, Bureau of Land Management, and Forest Service on grounds that the spotted owl was endangered, large forest areas were protected from logging. Resulted in loss of jobs in tinder production

Concept: Issue Framing

Formation of boundary that forces us to look at a particular problem while neglecting other aspects of it

Concept: Three Levels of Scrutiny

1. Strict scrutiny: legislation must have compelling state interest that is done through the least restrictive means, high standards. (i.e., race, religion, fundamental rights)

2. Intermediate scrutiny: must have important state interest and must be substantially related to achieving the interest. (i.e., gender)

3. Rational basis: Law must have legitimate interest and rationally undertakes interest. (i.e., LGBT, mentally challenged people )

Miller & Barnes: Institutional Approach

- Argues that overall tension between congress and the courts is on the rise in large part because of their different institutional cultures;

- Argues that American policymaking not only features shared lawmaking power, but also that courts and Congress share lawmaking power differently in different institutional and issue contexts

Miller & Barnes: Comparative Approach

Legislative, executive and judicial functions are often shared and sometimes reversed, in that courts sometimes act as the lead policymakers and the elected branches intervene to resolve specific disputes among the contending interests

Miller & Barnes: Behavioralist Approach

Views the Supreme Court and Congress as rivals; asks whether/under what conditions the Court uses its power of judicial review to thwart the preferences of the "dominant lawmaking coalition"

Term: Windows of Opportunity (Cairney)

Short term chances for policy change "when a number of events happen at the same time"

Cairney: Rationality

Gov't as individual who will create policy based on all data, representative of individuals wants and needs

Cairney: Bounded Rationality

Take in limited amount (incomplete/imperfect) of info and make decisions with what's available

Cairney: Implementation Gap

The difference between a policymaker's intention and the policy outcome

Kingdon: Governmental Agenda

The list of subjects that are getting attention

Kingdon: Decision Agenda

The list of subjects within the governmental agenda that are up for an active decision

Concept: gerrymandering

political parties are more divided than in the past and the divisions keep widening, especially on racial issues

Person: Ta-Nehisi Coates

black writer for The Atlantic

Person: Daniel Patrick Monagen

Report on Race

High unemployment of black men - breakdown in the black family

3 centuries of oppression - he didn't give a recommendation/solution

Document was misconstrued

Joining military, minimum income

Hochschild: Strangers in their Own Land

poor white perspective, standing in line

Term: Public Policy

government action

Cairney: whatever governments choose to do or not to do

Term: Theory

set of analytical principles that can be used to predict and structure our observations

Concept: UPS

for theories: why we need public policy

U= understand and explain

P= predict

S= strategize and have an impact

Term: Market

- social system in which individuals pursue their own welfare by exchanging things whenever trades are mutually beneficial

Term: Polis

individual interests are held in common, communal goals in the public interest

goals for the community

Term: Market Failure

a situation in which the allocation of goods and services is not efficient, often leading to a net social welfare cost

How do conditions become problems that we can address?

Changes in the nature of the condition itself

Increased scientific knowledge

Increased technical capability

Changes in the social construction of the problem

Six problems of direct democracy

Procedural problems: Poor drafting, multiple propositions on one issue, late legal challenges

Provisions may deny civil or human rights

Confusing—multiple initiatives that are complex

Difficult to educate voters on issues

All aspects of implementation may not be considered

Racial implications

Person: Mary Bonauto

- civil rights lawyer for gay marriage

- works at GLAD

- started with states to build incrementally to get to a point of marriage equality

Case: Bakke

- Regents of the University of CA v. Bakke (1978)

- over the issue of affirmative action

- the school kept 16 out of 100 positions open for minorities only in their medical school

- he claimed 'reverse discrimination'

- 'positive discrimination': showing favoritism to minorities and underrepresented groups

- the court ruled for Bakke

- affirmative action is okay

- quotas cannot be used

Policy entrepreneur: Center for Individual Rights

Goal: undo affirmative action by bringing precedent setting cases to court.

Goal: Overturn Bakke and ALL use of race in admissions decisions

- free speech, civil rights, limited government

Term: strict scrutiny

the most stringent standard of judicial review used by US courts.

to pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest.

Based on Equal Protection Clause of the 14th amendment.

Case: Hopwood v. TX

5th circuit

CIR chose Hopwood and three other plaintiffs

ruled creating diversity not a compelling objective

Texas state universities could not consider race at all

Term: color blindness

Color blindness: unconscious acceptance of status quo in which it is normal for whites to have easier access than blacks to colleges

Case: Grutter v. Bollinger

- Grutter applied to UMich Law and didn't get in

- Law School admits that it uses race to achieve diversity: quota system

- Grutter claimed that the school discriminated against whites

- Court made clear that affirmative action programs are only constitutional if they consider race as one factor in an individualized evaluation, and only to achieve the goal of "class diversity"

Case: Fisher v. U TX

- Abigail Fisher denied admittance to UT

Top 10% is already admitted -> automatic

□ Rest is decided by race

Decision: TX was in the right -> appealed

Does Equal Protection Clause allow for consideration of race

Case: Gratz v. Bollinger

- UMich undergrad

- she would've been accepted if she wasn't white

- race was used as one factor

Concept: "public policy grid"

Local, state, federal

Legislation/litigation (all 3 levels), courts, ballot initiative (direct democracy), executive orders

Miller & Barnes argue that you can't just study one branch at a time

Term: "adversarial legalism"

working through the courts

it has become professionalized

Remedies for problems of ballot initiatives

○ Single-subject rule

○ Must submit ballot to legislature for analysis

○ Statutory deadlines for challenges

○ Cap number of ballot measures

More effective voter education

Key states discussed in Cole

CA, MA, VT, ME

Term: preemption

the rule of law that if the federal government through Congress has enacted legislation on a subject matter it shall be controlling over state laws and/or preclude the state from enacting laws on the same subject if Congress has specifically stated it has "occupied the field."

-DOMA, and yet the SF mayor Gavin Newsom ignored state law and made marriage legal in the city, claiming he was jusut following the Constitution

Case: Bowers v. Hardwick

Georgia sodomy law

Upheld GA's law -> Constitution does not give you the right to homosexual sex

Nobody could engage in sodomy, so it "wasn't" discriminatory

Term: Dillon's Law

substate unit can only do things that state allows it to (gives it the power to do)

ex. SF mayor Gavin Newsom passing state laws that contradicted DOMA, claiming he was following the Constitution

Case: Spotted Owl

○ Bureau of Land Management and National Park Service (protect forest land and manage logging, drilling, etc)

○ How much logging should be allowed?

○Environmentalists v. loggers

○ Sierra Legal Defense Fund - 9th circuit

Federal law declared the Spotted Owl an endangered species, and brought the case to federal court

○ "takings"- government takes land (like they took away the right to logging)

Similar to eminent domain

Take private property for a fair market value

○ They kept fighting the case because the stakes are high--you could lose a lot of money

○ Spotted Owl v. working class individuals

○ Issue framing and evidence

Ex. Conservative judge challenging the scientific basis --> not unbiased

Ex. Climate change

Case: Citizens United v FEC

○ SCOTUS case

○ 2002- Bipartisan Campaign Reform Act implemented

○ 5-4 Citizens United decision invalidated portion of Reform act --> don't want to limit how much money can be donated by corporations

○ Buckley v. Valleya (1976)

Struck down Federal Election Campaign Act

Government cannot limit the amount individuals can spend in an election

□ Money is a form of political expression for individuals

○ Austin v. Michigan Chamber of Commerce (1990)

6-3: corporations do not have the same rights as individuals

□ Limited liability and extended life give them an unfair advantage

○ McConnell v. FEC (2002)

Upheld Bipartisan Campaign Reform Act