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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

On Election Law Jurisprudence

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February 28, 2006

In this essay, I shall discuss some points raised by a couple of my fellow panelists in this Forum. In a thoughtful and provocative piece last week, Ned Foley made these two statements: First, "election law is supposed to serve as an agreed-upon set of ground rules by which citizens with sharply divergent views of social policy can choose the representatives who will write the laws that govern them." Second, "the Court's job is to discern the meaning of the ground rules that, for better or worse, we already have adopted."

In his essay, Foley wove these ideas together to discuss a number of important questions. In contrast, I want to separate them, because I want to agree with the second but question the first. Preliminarily, the waters here are very deep. Neither Foley nor I could possibly do more than offer a few suggestive ideas in essays of this length.

Foley's second point is essentially a call for the rule of law in electoral jurisprudence. He places very heavy emphasis on the binding nature of precedent. He applies that emphasis with impressive rigor. Thus, he argues that precedent ought to prevent the Supreme Court from overruling the Buckley holding that campaign spending limits are unconstitutional. Foley's former writings suggest strongly that in this instance he is placing his jurisprudential views over his personal preference. Regrettably, that is anything but a routine event in legal academe.

I would not necessarily place as much emphasis on precedent. Unlike Foley, the lesson I draw from the Alito hearings is that precedent should be given due weight but is not necessarily controlling in Supreme Court constitutional decisions. As I described in an earlier essay, I believe the ban on spending limits is good policy. Still, if the majority on the Court believes that it is questionable jurisprudence or that the thirty years since Buckley have shown it to be ill-advised, I would not assert that it is unreasonable for them to revisit such a precedent at this stage.

Much more importantly, I strongly agree with Foley that the Court's election law rulings should be law. Many scholars argue for particular results in election law cases based on their theories of politics. Some consider it a problem that the Court does not have a clearly defined political theory to use as a guide to deciding cases. For a skeptical view of that notion, see my "The Supreme Court Has No Theory of Politics-and Be Thankful for Small Favors," in The U.S. Supreme Court and the Electoral Process (David Ryden, ed., 2d ed., 2002). The best alternative is for the Court to follow the rule of law. Admittedly, that simple statement covers a vast can of very squiggly worms, but for all its difficulties, I deny that it is an illusory goal. I very much appreciated Foley's articulation of similar views.

The other idea, that election law should be simply "an agreed-upon set of ground rules," resonates against a background that begins with the famous Footnote 4 of the Carolene Products case, in which Chief Justice Stone wrote that activist judicial review was appropriate in the case of "legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation." Whereas policy issues such as taxation, national security, education, and environmental protection are inherently political and must be resolved through representative institutions, the "ground rules" should be neutral and susceptible of agreement by all public-spirited people, whether liberals or conservatives, Democrats or Republicans.

The Carolene Products footnote has been the basis for many scholarly approaches to electoral jurisprudence, perhaps most notably in the work of the late John Hart Ely. Foley is in excellent company. But I believe the view he and they put forth is seriously flawed. The ground rules for electoral politics are essentially contestable. Footnote 4 enthusiasts will readily concede that debate over the ground rules is made murky by the intrusion of political self interest. The fact that the most virulent opposition to districting by legislatures in the 1980s was voiced by Republicans but by Democrats in the present decade is an obvious example. But they believe academics like themselves, and the courts, can get beyond such parochial concerns. The trouble is that even those who are relatively disinterested have profound differences over ground rules-witness the debates within this Forum.

It is also true that there are broad areas of agreement over how elections should be structured and that there is a very large role for reasoned discourse in election law controversies. But the same is true of national security, taxation, education, and environmental protection. No doubt there are distinctive considerations in election law compared with other subjects. But the idea that election law is or could be or should be exempt from politics seems to me to be an illusion.

In the last few years, the most prominent version of the Carolene Products idea in election law scholarship has been the view that the main role for the courts in fashioning constitutional law should be to prevent incumbent officials and the major parties from using their control of the government to stifle competition and advance their political self interest. That viewpoint is ably represented in this Forum by Rick Pildes, one of its most prominent exponents. In his essay posted last week, Pildes identified the problem that should be the subject of judicial policing this way: "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."

Pildes' statement of the problem is characteristic of the school of thought he represents in that it is not entirely clear whether he is most concerned that (1) the incumbents are acting unethically by using their public positions for their own benefit or (2) the measures they take toward that end will be in other respects harmful. I do not want to make a thoughtless claim that is sometimes heard in public debate, that those arguing for a particular policy must settle on a single reason for it. Of course, a policy supported by two or more good reasons is none the worse for that fact. But I want to distinguish the two points because, although each may sound plausible or even obvious, I believe each is quite tenuous.

The idea that office-holders should not act out of self interest is directly contrary to the views of those who wrote the Constitution. In his famous Federalist Number 51, James Madison wrote that if a free government was to be preserved, "Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place." I believe Madison was right. In any event, there is something very naïve about the suggestion that courts should review election laws strictly if they are influenced by politicians' self interest. What laws that emerge from Congress or state legislatures on any subject are not influenced by politicians' self interest? Why should election laws be different?

The consequence of self-interested election laws that most bothers not only the scholars but, more importantly, the mainstream press, is that legislative elections are not sufficiently competitive. I cannot address that issue adequately here, but it is worth noting that our electoral politics is more intensely competitive than it has been at any time since the Civil War. True, the number of legislative races in which seriously competitive campaigns are waged in a given year is low. That may be a problem (though there are weighty arguments to the contrary), but it is hard to see why it is an especially serious one, unless it results in incumbents being less accountable to their constituents. By all accounts, members of Congress and state legislators are obsessively accountable. If anything, we could probably use a little extra dose of Burkean representation in our legislative politics.

Admittedly, the foregoing does not do justice to this very complicated issue. Those who would like to learn more should read the superb article by Nathaniel Persily, "In Defense of Foxes Guarding Henhouses," 116 Harvard Law Review 649 (2002). Some important points are also made in the White Paper prepared by the No on 77 Committee in last year's California initiative campaign. (I chaired that committee but played only a minor editing role in the White Paper, which was written primarily by my son Nathan Lowenstein and two other staff workers for the campaign.)

Finally, I'd like to join others in thanking the Moritz Election Law Center and its outstanding faculty for sponsoring this Forum.

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