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Electronic Roundtable '06

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Electronic Roundtable '06

Political Competition and The Constitution

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February 22, 2006

The Supreme Court's coming back-to-back confrontation with campaign financing and legislative districting might appear to raise issues as far apart from each other as the sizes of Vermont and Texas , the two states involved. But the coincidence that the Court will hear the cases at nearly the same time brings into sharper relief a central, deeper issue that unites these particular problems - and that unites much else in thinking about the relationship between the Supreme Court and democracy. Before too quick a narrow focus on predicting outcomes and counting votes, we ought to think about the fundamental issues concerning democracy that lie at the heart of these cases.

All democracies face a critical problem: we know that those who temporarily hold power will always be tempted to make, change, or bend the rules to keep themselves - or their allies - in power. With his characteristic rhetorical flair, Justice Scalia has put it most concisely: "The first instinct of power is the retention of power." (see last page of opinion) Democracies, old and new, have to come up with means to keep power from wrongly entrenching itself. Democracy requires that there be vibrant political competition, so that ideas are tested and citizens can hold those in power accountable through meaningful elections.

Campaign financing and the process of designing election districts - both in general and in the Vermont and Texas cases - can be used to suppress political competition. And in the United States today, elections to Congress, for example, have become less competitive than at any time in American history; elections to state legislatures are similarly becoming less competitive. In the United States , partisan political bodies - state legislatures - have the power to decide how elections should be financed and how election districts should be designed (the United States is the only Western democracy that designs election districts in this way, rather than through the commissions used everywhere else). Because partisan legislatures hold this power, the risk that they will manipulate the rules for these partisan purposes is ever present. And the question then becomes how constitutional law should respond to this threat, in general and in the Vermont and Texas cases.

In Vermont , those who challenge Vermont 's caps on election spending argue that this kind of campaign finance "reform" has the purpose and effect of making it more difficult to challenge incumbents. Indeed, some critics of campaign finance regulation appear to argue that virtually any system that puts caps on contributions or spending necessarily favors incumbents. Justice Scalia appears to believe that. Incumbents begin with numerous advantages; challengers need lots of money just to achieve enough name recognition to be credible; thus, these critics conclude, limits on spending or contributing necessarily benefit incumbents. And we should keep in mind that most campaign finance laws, like that in Vermont, are elected by incumbent legislators (some states, though, have adopted them through voter initiatives). But of course, the refusal of a legislature to enact campaign finance laws can also be a way that incumbents protect themselves against challenge too. The First Amendment is supposed to ensure robust political debate and competition. But how can we decide - and how can courts decide - whether any particular campaign finance law promotes or suppresses democratic competition? I will have more to say on that in later posts.

In Texas , the parties fight over whether the Republicans now in power took more, less, or the same advantage of the Democrats in designing election districts that the Democrats took of the Republicans in earlier decades when the Democrats were in control. But the biggest scandal of redistricting today is that the incumbents of both political parties have figured out, with computer assistance, how to design districts that eliminate any serious threat that incumbents will face a serious challenge. The Texas plan, arguably, does exactly that. Does the Constitution have anything to say about that? I believe that it does: the only power the states have to design congressional districts comes from the Elections Clause, Art. I. , sec. 4. I do not believe that clause gives state legislatures the power to design districts in a way that systematically insulates incumbents from all meaningful political competition. More on that in later posts, too.

Before leaving off, one general point: I agree with Brad Smith that Rick Hasen poses the legal questions in much too simplistic - and loaded - a way. The issue is not whether the Court should act as a "mighty Platonic guardian" or instead "act more modestly" and "carefully balance" the various interests in both cases. Framed that way, who could be against modesty and carefulness? And who would endorse rule by Platonic guardians, mighty or otherwise? These are just labels, attached after the fact to decisions one likes or dislikes; but they do no good in analyzing what the relationship between constitutional law and democracy ought to be. Based on the Constitution's text, history, purposes, and institutional structures, the real question can only be, when is it appropriate for the Court to conclude that some effort of a State to structure or restructure the way democracy is practiced violates the Constitution - with respect to novel election financing systems, as in Vermont, or novel political practices, such as the mid-decade redistricting in Texas, or with respect to other issues at the border between constitutional law and the processes of democracy. The question is when the Court should intervene, for what reasons, in what contexts, under the Constitution. I will offer answers to that question, and turn to more specifics about both cases, in the next several days.

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