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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

The Nature of Judicial Modesty

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February 23, 2006

Both Rick Pildes and Brad Smith disagree with my call for the Court to act modestly. Rick calls my formulation "simplistic-and loaded," essentially a pejorative label applied to election law policy I don't like. Brad writes that "one person's 'careful balancing'. is another's 'mighty platonic guardian' activism." I respectfully disagree.

Let's understand what is potentially at stake in these cases (or, as I have explained, at stake in the Supreme Court's grappling with these issues over the next decade). If Brad Smith had his druthers, the Supreme Court would bar Congress, every state, and every local government from enacting any limits on the amount of money that any individual, corporation, or union could contribute to any candidate or committee. He's not even sure that requiring disclosure would be consistent with a First Amendment right to "anonymous speech."

If Rick Pildes had his druthers, the courts would have the power to examine every redistricting of congressional districts done in every state every ten years to make sure that the plan is sufficiently "competitive." It is not clear how competitive districts would have to be-a problem that gives too much power on politically loaded questions to judges, as Dan Lowenstein notes. But even setting that problem aside, it appears that Rick would require states to place competitiveness above other valid interests, such as keeping communities of interest together.

Competitive districts create their own problems. There's no question that one could create more competitive districts (in California , think liberal Santa Monica in the same district with conservative parts of Orange County ), but that would change the nature of representation. We would have more centrist representatives. That may or may not be desirable; but the Constitution certainly doesn't mandate one form of representation. And what of majority-minority districts required by the Voting Rights Act? Also, if we had more competitive districts, we could see wild swings in congressional representation as Democrats or Republicans gain a small and temporary bump in public approval. Finally, looking at the Congress and the political system more broadly rather than at individual districts, it is hard to argue that our politics are insufficiently competitive.

All of this is not to say that Brad or Rick's policy suggestions are bad ones. On redistricting, for example, I support moves toward nonpartisan redistricting commissions. But the Constitution does not mandate these policy changes. (Rick can correct me if I am wrong, but I believe his reliance on the Elections Clause is of recent vintage; in the past, Rick and his often-co-author Sam Issacharoff have argued for the court to read competition into the Constitution even while acknowledging that the Constitution does not explicitly provide a "textual hook" for doing so.)

The common problem with Brad's and Rick's projects is that they would have the Supreme Court impose "one size fits all" solutions for the entire United States, when there is no compelling reason to do so. A court that acts modestly considers whether intervention is really necessary, or whether the political process itself can be trusted to work things out. It engages in careful balancing on a step-by-step basis, balancing individual rights against the stated and proven interests of the state.

When it comes to campaign finance, a court conducting a careful balancing could well conclude that the Vermont spending limits impose too high a free speech cost, particularly because they are not coupled with generous public financing to ensure that a variety of different voices are heard. But Brad would have the court strike down the Vermont contribution limits too, taking the Court down the deregulationist road without a showing that contribution limits have prevented robust political debate.

When it comes to redistricting, Dan Lowenstein is right that there is a political solution-the Constitution fully empowers Congress to ban mid-decade redistricting. And states can impose redistricting reform on their own. Rick might claim that self-interested legislators will never draw competitive districts on their own. But what is interesting is that in the 24 states with the initiative process, where the people can make an end-run around the legislature, we don't see a clamoring for redistricting reform. (Voters recently rejected such reform in California and Ohio .) Until we know the political process is really stuck, it is premature for courts to impose such draconian limits on state redistricting processes.

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