This is law and politics week at the Supreme Court. As you mentioned in your last posting, there may be interesting crosscurrents from the opinions on campaign financing handed down Monday and the opinions on political gerrymandering likely to come Wednesday.
In the span of three days the court will confront the two most corrosive elements of our national political and public life: first, the cost of campaigning and the resulting soft corruption that infects every candidate who must constantly raise money from people with a financial interest in his or her office; and second, increasingly aggressive and sophisticated partisan gerrymandering, which has almost eliminated competitive elections through “safe,” one-party districts.
Both campaign fund raising and gerrymandering cry out for reform. But with respect to each, there is a fundamental question: Would further judicial intervention make matters better or worse? Do we need the Supreme Court to save politics, or do we need to save politics from the Supreme Court?
In setting the terms for its own role, the court is likely to split the two cases—ironically intervening to strike down the Vermont legislature’s attempt to enact what it thought were wholesome and good reforms to campaign finance, while invoking judicial restraint to justify leaving in place the ugly, raw partisanship of Texas’ middecade redistricting plan. But the issues are more complicated than I have just suggested.
Let me start with redistricting. During the last quarter-century, partisan districting has had truly terrible effects. First there is the simple unfairness of taking a state that is, say, evenly divided between the parties and using advanced computer games to produce distorted districts that result in a state’s congressional delegation being three-fourths Democratic or Republican, depending on which party is in control of the state legislature. When control of the legislature switches, districts are then altered to reverse the political advantage, causing turnover that deprives voters of a connection with their representatives.
But that’s not the worst of it. The elimination of competitive districts has polarized Congress. When I was a summer intern for Democratic Rep. Frank Thompson of New Jersey in 1961, he had about as many Republican friends as Democratic ones. Among them were maybe 75 to 100 Republicans who were more liberal than 75 to 100 Democrats, and a similar number of Democrats who were to the right of many Republicans. That was more important than we knew. Because in order to function as committee chairs and usher through legislation, representatives had to make common cause with fellow party members with whom they differed philosophically. It was impossible to demonize opponents—they were necessary allies on one matrix or another. The dramatically increased ideological purification of our parties over the ensuing decades has meant they are now separate armies arrayed against each other. To hell with the other side.
Partisan districting is not the sole cause of this. The Voting Rights Act of 1965—perhaps the best piece of legislation ever passed—also had the unintended side effect of moving the Democratic Party to the left (with the addition of African-American voters in the South) and the Republican Party to the right (with the addition of “racially conservative” white Southern former Democrats.) But computer-enhanced partisan redistricting has taken the polarization to a new level.
Partisan gerrymandering is wrong, and it is a constitutional wrong, for it involves discriminating against some voters on the basis of their political beliefs and interfering with the process of self-government by the majority. But what is a court to do? An appreciation of the political effects of different districting plans cannot be eradicated from the legislative mind. How much consideration is too much? How is a court to tell? And will the body politic believe that federal judges, because they are unelected, are disinterested referees of the political process?
Until I heard the oral argument, I thought that the Texas case might be the exceptional one in which there was actually a judicially manageable standard that could be invoked to set aside what the state legislature had done. The facts suggest a perfect storm of partisanship: Texas had adopted a Democratically biased congressional redistricting plan in 1990; a split in the control of the state legislature had led to deadlock over the required decennial redistricting in 2001; a court had to act to adopt a plan. Tom DeLay, accusers said, raised illegal corporate money to gain control of both state houses, tried to get the Federal Aviation Authority to monitor Democrats fleeing to Oklahoma to defeat a quorum, and pushed through a partisan plan that made the Texas delegation to Congress heavily Republican.
Finally, it seemed, a case that could be resolved with a “judicially manageable standard.” Given the almost unbroken tradition, pegged to the census clause of the Constitution, that the lines for Congressional districts are redrawn every 10 years, some explanation is required for the highly unusual act of the Texas middecade gambit. Of the Texas move it can truly be said, to paraphrase the late coach Vince Lombardi, “Partisanship was not the most important thing; it was the only thing.”
Well, another reason for the do-over, state Solicitor General Ted Cruz ably argued for Texas, was to replace a judge-made plan with one adopted by the legislature. That is not a “reason” Washington, D.C., lawyer Paul Smith ably responded as counsel for the challengers—legislatures don’t usually pass laws just to pass laws.
We will see, perhaps tomorrow. I don’t think Justice Kennedy bought the argument that Texas was out of line. If the court doesn’t intervene in this redistricting controversy, it never will. And that is too bad.
The court, in contrast, did intervene in the Vermont case, striking down the Vermont legislature’s spending limits on candidates and contribution limits on donors. I don’t agree that this is a confused outcome with some bright spots for advocates of campaign spending limits. These advocates went into the case hoping to overturn the First Amendment ban on laws limiting campaign expenditures. They lost on that point and were also hit with invalidation of Vermont’s low limits on contributions.
Our system of self-government is being drowned by money. But I am very skeptical that legislative limits will make it better. Permitting contribution limits as low as Vermont’s would lead to incumbent-protection laws in many states: Curtail spending, and incumbents win. Money will find ways to influence elections, and giving money to political parties is probably the least bad way for that to happen. Make it a crime for moneyed interests to give big bucks to campaigns to pay for television ads and they will simply buy television stations. No wonder so many big media companies editorialize in favor of campaign contribution limits. The families that own those operations will be free to spend all they want to influence elections, and everyone else will be shut down.
The only solution I can see is some plan like that proposed by Yale law professor Bruce Ackerman. Give every registered voter a voucher for a few hundred dollars (or a few thousand—this would still be a bargain) to be used for whatever state, local, or federal candidate the citizen wished to support. She would send in her voucher to her favorite campaign, which would submit it to the U.S. Treasury for payment. There would be no limits on private spending, but its influence would be greatly diminished by the flood of everyone’s money.
No legislature will adopt a plan that would so sharply reduce the influence of the affluent. And it is way beyond the power of a court to do such a thing. God help us.