Abstract
In 2013, the Supreme Court dealt a heavy blow to American democracy. In Shelby County v. Holder, Chief Justice John Roberts—writing for a 5-4 majority—struck down Section 4(b) of the Voting Rights Act (VRA). That provision contained the formula to determine which jurisdictions would, as the result of past legacies of discrimination, require approval from the Department of Justice before changing election laws and procedures. The years since the Shelby decision have seen the rise of a particularly virulent strain of voting restrictions in previously covered jurisdictions—including racial gerrymanders, voter ID laws, and voter-roll purges. In other words, we are seeing a backsliding away from the VRA’s policy equilibrium.
How can rights once thought to be so entrenched erode over time? In Policy Drift, Norma Riccucci wisely reminds us that “[t]here is no finality to the public policy process” and that “even those policies believed to be settled and stable can change or drift in unexpected directions” (p. 1). Riccucci is by no means the first scholar to make this claim. Following on foundational work by Jacob Hacker, Kathleen Thelen, Paul Pierson, and others, political scientists have become increasingly interested in the processes by which putatively settled reforms erode slowly over time. Yet, whereas most studies of drift relegate their attention to major social and health programs, Riccucci turns her attention to the crucial domains of civil rights and environmental policy. This is important in its own right. The study of postenactment politics has advanced considerably in recent years, yet, it has been afflicted by a kind of tunnel vision that has left important rights-preserving and welfare-enhancing policies off the table. Riccucci’s study thus serves as a corrective lens, which allows us to examine how drift unfolds in these critical domains. It may also open up a broader conversation on how well theories of gradual institutional change “travel” outside the empirical context in which they were developed.
One key insight from Riccucci’s study is that drift is difficult to “design away” through creating automatic stabilizers (e.g., indexing the minimum wage to inflation) or delegating authority to administrators who can update policies to reflect economic or social developments. As Riccucci shows, policy drifts can result from shifts in the political control of governing institutions rather than changes in the technical policy context alone. Shifts in political control allow existing legal frameworks to be converted over time. By examining cases such as Ledbetter v. Goodyear—which concerned the gender pay gap—Riccucci reveals how a rightward shift in the balance of power on the Supreme Court undermined existing interpretations of workplace-discrimination prohibitions in Title VII of the Civil Rights Act of 1964. Political developments can also alter the capacity of legislative institutions to recognize and reverse patterns of drift. Congress’ efforts to reverse the Ledbetter decision were stalled until Democrats made historic electoral gains in the 2008 elections. In short—more than careful policy design—counteracting drift may depend on the embedding of support for that policy in the political arena or the consolidation of control by that policy’s most ardent supporters.
A second insight from Riccucci’s research is that reversing undesirable policy drifts may require conscious acts of venue shifting and issue framing. As Chapter 2 shows, civil libertarians have mobilized to reverse policy drifts in the U.S. privacy rights regime following the Patriot Act of 2001. Yet, while many of these efforts have focused on litigation, courts have generally deferred to the judgments of Congress and executive-branch officials. Shifting the venue to the legislative arena has proven difficult, however. If anything, the Patriot Act has allowed policy makers to frame privacy concerns as in direct conflict with national security. Federal officials have also framed whistleblowers who expose domestic surveillance—such as Chelsea Manning or Edward Snowden—as traitors. Neither litigation nor standard legislative coalition building appear sufficient to reverse policy drift. Reversion to the pre-2001 status quo ante, if it happens, may require a broader social mobilization that resets the parameters of the privacy debate.
Finally, Riccucci shows that efforts to adapt policy to meet new environmental demands may themselves be subject to forces of policy drift. The Environmental Protection Agency (EPA) has repeatedly attempted to convert the Clean Air Act of 1970 to address the problem of global warming. Despite a 2007 Supreme Court decision ruling that the EPA has the authority to regulate such gases, the agency has faced great difficulty in making its new regulations stick. Not only did the Supreme Court block the implementation of the Obama administration’s Clean Power Plan, subsequent decisions by the Trump administration have made significant strides in rolling back that plan in full.
One broader insight offered in Policy Drift is that while the regulatory process offers a means of adapting policy in the face of persistent legislative intransigence, it is not a substitute for legislation. Despite the efforts of a bipartisan coalition, Congress has taken no action to revise the VRA to respond to Shelby County v. Holder. In the absence of congressional action, neither courts nor state governments have taken adequate action to stop ballot-box discrimination. Indeed, it may be impossible to address the problem of policy drift without taking steps to remedy dysfunction in Congress.
In a democratic society, policy drift is a problem because it typically removes control of policy from the hands of democratic publics. If this is so, Riccucci’s book offers an important assessment of the U.S.’ capacity to respond to the most important problems contemporary democracies face—protecting civil liberties, ensuring equal protection before the law, and addressing existential threats like climate change. The evidence is disturbing. Moreover, there are no easy ways out. Technical fixes are necessary but insufficient for remedying the harms caused by policy drift. Solutions will likely depend on a politics of path clearance. More than merely transactional interest-group intermediation, resetting the course of public policy may ultimately require broad-based social mobilization.
Some readers may wish that Policy Drift went further to spell out its implications for theories of gradual institutional change. Especially given that Riccucci relies on cases that prior scholars have not examined, there are numerous lessons to be gleaned about how well existing theories of gradual institutional change theories travel to new contexts. Yet, the book’s concluding chapter could go further to address how its evidence challenges or remains consistent with prior literature. Furthermore, it is worth noting that Riccucci employs a somewhat expansive definition of drift, one that encompasses processes that other scholars have characterized as conversion and layering. It seems as if there is a missed opportunity for a broader theoretical discussion, especially given recent developments in the conceptualization and measurement of gradual institutional change.
These objections should not overshadow Riccucci’s accomplishment in this book. Policy Drift is essential reading for scholars and practitioners alike. It would make for valuable reading in graduate and advanced undergraduate courses in political science, public policy, and public administration. It would also be enlightening for anyone who wants a deeper understanding of how gradual policy change is altering the character of American democracy.