All posts by Richard Pildes

“Far-right US Republicans receive millions from new class of debt hardliners”

Paywalled story from the Financial Times on the changing ecosystem of large donors on the Republican side:

A new class of political donors is funnelling millions of dollars to far-right Republicans, as growing dissatisfaction with the party establishment fuels support for hardline causes such as resistance to raising the US borrowing limit. Unlike previous generations of conservative megadonors — often Wall Street types who poured money into major fundraising vehicles — the new, more geographically diverse cohort is making targeted donations to far-right candidates and the groups supporting them. As a result, rightwing groups including the anti-tax Club for Growth and House Freedom Action, a political action committee that supports lawmakers in the hard-right House Freedom Caucus, are wielding increasing leverage over key issues.

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Want to Feel Better About American Elections?

From the Financial Times, paywalled:

It’s not every day that foreign observers are needed to monitor an election in Germany, one of the west’s richest and most stable democracies. But then again, Berlin is no ordinary city. Fourteen officials from the Council of Europe, the continent’s top human rights body, will arrive in the capital this week to observe Sunday’s rerun of its 2021 election, an event so chaotic its results were nullified: Berliners had to queue for hours at polling stations, which ran out of voting papers and ballot boxes. Some stayed open late to cope with the crowds, when broadcasters were already calling the result. For the opposition, the polling-day debacle highlights just how badly governed Berlin is. “It is a symbol of the city’s dysfunction,” said Christoph Meyer, a Berliner who sits for the liberal Free Democrats in the Bundestag, the federal parliament. “Its administration and political structures just don’t work.” Raed Saleh, leader of the ruling Social Democrats, blamed what happened on September 26 2021 on the marathon that ran concurrently and caused massive logistics problems. But he admitted the election flop was “not good” for the city’s standing. “It’s bitter, and we have to draw the right conclusions so it never happens again,” he said. The conclusion Berlin’s top court drew was that the city’s 2.8mn registered voters should be given a second chance to elect their local parliament and 12 district councils. It was the first time in Germany’s postwar history that a regional election has had to be repeated.

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“Democracies in the Age of Fragmentation”

The California Law Review has now published this article of mine with the above title. It was also gratifying to see Tom Edsall quoting from this piece in his essay in today’s NYTimes.

The article is part of a Symposium on challenges to democracy today, with other articles on American and comparative perspectives on democracy from Steven Levitsky, Tom Ginsburg, Miriam Seifter, Richard Albert, and Roberto Gargarella. Here’s the abstract from my piece:

American democracy faces profound challenges in our era. Some of these challenges stem from features in the institutional design of democracy that are hard-wired into the Constitution; those challenges, unique to the United States, are the ones Steven Levitsky focused on in his provocative lecture. But other major challenges confronting American democracy are common to most major democracies in the West today. It is those more general challenges on which I want to focus in this Essay.

Over the last generation, democratic governments across the West, including the United States, have entered into a new era of politics that I call one of “political fragmentation.” By political fragmentation, I mean the myriad ways in which political power today is now effectively dispersed among so many different hands and so many different centers of power—political parties, organized outside groups, non-organized groups, and even individual actors—that it becomes difficult to marshal enough political power and authority for democratic governments to govern effectively.

This political fragmentation reflects widespread dissatisfaction with the performance of democratic governments. Yet perversely, fragmentation also makes it that much harder for these governments to deliver effectively on the major issues their citizens care most urgently about. In exploring the underlying causes of the rise of political fragmentation, the most significant question is whether it is a temporary, contingent fact about democratic politics today or whether it is likely to be a more enduring one—and if so, what the consequences for democracies going forward is likely to be.

Part I describes the nature of political fragmentation and documents its rise across the major democracies of the West, including in the United States. Part II briefly explains the major economic and cultural issues that fuel the emergence of political fragmentation. Part III then focuses extensively on the role of the communications revolution—the rise of cable television, the internet, and social media—in driving fragmentation in political parties and democratic politics. After identifying the new phenomenon of political fragmentation and suggesting its major causes, this Essay concludes with the question of whether this fragmentation is a temporary, contingent fact about the nature of politics today or is more likely to be an enduring characteristic of modern democracies.

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“Why Big-Money Donors Can’t Reel In GOP Rebels”

This WSJ piece has a lot of good detail elaborating on a point I make in my recent NYT essay, which is the way small-dollar donations have enabled the rise of free-agent politicians. This also highlights concerns I’ve raised before about whether small-donor matching programs would further fuel extremism. From the WSJ:

Big Republican donors haven’t been much help in pushing California Rep. Kevin McCarthy over the finish line in his bid to become speaker of the House of Representatives.

The reason: His dissenters don’t need them.

About half the Republicans opposing Mr. McCarthy’s bid for House speaker fund their campaigns through small, online contributions instead of counting on major donors and corporate political-action committees, a Wall Street Journal review of Federal Election Commission reports found.

Those streams of $5 and $10 donations can turn into a flood when a lawmaker stakes out a contrarian position and stokes political drama.

“Many of the holdouts do not rely on major donors, PACs and the traditional offerings that a political party can provide,” said Ken Spain, a corporate adviser in Washington and former communications director of the National Republican Congressional Committee. “There’s a perverse incentive for members to elevate their personal brand at the expense of the governing majority.”…

A candidate’s ability to raise huge amounts of money from email, text and social-media appeals has eroded the power of the political parties, business and lobby groups, and donors who dole out campaign contributions, Mr. Spain and other political strategists said. That means there is no natural base of influencers to push small-donor-dependent politicians by threatening to withhold election financing.

In fact, high-profile political moments and divisive, contrarian sound bites provide the richest environment for online fundraising, the past few election cycles have shown….

What the dissenters have in common more than anything else is a strong reliance on small donors.

“It’s these very antics that let these obstructionists raise all the money online, creating a very destructive cycle,” said Brendan Buck, a top aide to the previous two GOP speakers of the House and now a partner at a Washington communications firm.

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“Why the Fringiest Fringe of the G.O.P. Now Has So Much Power Over the Party”

The Republican Party’s struggle over choosing a Speaker reflects large structural changes in American democracy, as well as democracies more generally. For my perspective on that, see my (RP) latest NYT essay. An excerpt:

This Washington drama reflects larger structural forces that are changing American democracy.

Revolutions in communications and technology have transformed our democracy in more profound ways than just the more familiar issues of misinformation, hate speech and the like. They have enabled individual members of Congress to function, even thrive, as free agents. They have flattened institutional authority, including that of the political parties and their leaders. They have allowed individuals and groups to more easily mobilize and sustain opposition to government action and help fuel intense factional conflicts within the parties that leadership has greater difficulty controlling than in the past.

Through cable television and social media, even politicians in their first years in office can cultivate a national audience. When Representative Alexandria Ocasio-Cortez entered Congress, she already had nine million followers on the major social media platforms, more than four times the number for Speaker Nancy Pelosi and an order of magnitude more than any other Democrat in the House. Recognizing the power social media provides, Representative Matt Gaetz, Republican of Florida and a provocateur in the opposition to Kevin McCarthy’s speakership bid, has said he wants to be the A.O.C. of the right.

The internet has also generated an explosion of small-donor donations, which enables politicians to raise large amounts of money without depending on party funds or large donors….

Control over committee assignments was once a powerful tool party leaders had to encourage members to follow the party line and punish those who did not. Now major legislation is often developed in a more centralized process among a small group of party leaders, rather than through the committee process, which has made committee assignments less valuable. In addition, members no longer need to serve on important committees to gain national profiles or attract campaign funds and, with modern communications tools easily available to individual members, can still readily mobilize opposition to proposals. Those challenging Mr. McCarthy for speaker know they run the risk of being punished in their committee assignments, should he eventually prevail. But that threat no longer carries the weight it once did in an era of free-agent politicians.

Many members also benefit from being in increasingly safe seats, which leaves them unconcerned about general elections and encourages playing to more ideologically committed primary voters. The power to gain a national audience and raise more than enough funds through small donations has also encouraged the rise of politicians who are in the game more for the attention and opportunities it provides than for governing. The risk of cable television hosts turning on them is a much greater concern than failing to get particular committee assignments….

This particular battle is one sign of the new world of political fragmentation now confronting nearly all democracies. Political fragmentation is the dispersion of political power into so many different hands and centers of power that governing effectively becomes far more difficult.

Economic and cultural conflicts drive this fragmentation, but it has been enabled by the communications revolution. In the proportional-representation systems of Western Europe, the traditionally dominant large political parties have splintered into a kaleidoscope of smaller parties. In the United States, the two major parties have been internally split, with leadership having less capacity to overcome those divisions…

As Mr. McCarthy’s bid for speaker highlights, the incentives for opposition and the ease of mobilizing it — for policy as well as party control — have become enhanced. Marshaling collective power has always been more difficult, but it remains the essential component for delivering effective government. The emerging forces of fragmentation will continue to bedevil the leaders of both political parties, as they do parties throughout democracies today.

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“Big Cities in Swing States Saw Declines in Midterm Voting”

This is from a WSJ piece, which is paywalled. A few excerpts:

In Detroit, about 22,600 fewer voters came to the polls than in the 2018 midterm election, a nearly 12% decline. Philadelphia tallied about 55,300 fewer voters than four years ago, a 10% drop. In Columbus, Ohio, the shortfall topped 50,000, down 17%….

Wisconsin’s largest city drew about 36,000 fewer people to the polls than in the last midterm, a decline of nearly 17%. If Milwaukee voters had turned out in the same numbers as in 2018, and Mr. Barnes retained his 80% share among the additional voters, he would have netted roughly 22,000 additional votes and cut his losing margin against GOP Sen. Ron Johnson from 1 percentage point to just 0.17 percent of votes cast.

A full assessment of which voter groups account most for the falloff won’t be known until states update their records of who cast ballots. Analysts in both parties say the parties say the decline came largely in heavily Latino and Black precincts of big cities. 

“I don’t think people have been engaged since President Obama,” said the Rev. Greg Lewis, a Black pastor who leads Milwaukee’s Souls to the Polls group, a church-based organization that seeks to boost voter turnout. “Black folks don’t trust the system, and they don’t understand their power.”

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How Would the Supreme Court’s Major Precedents Concerning Democracy Fare under the Potential Test Discussed in Moore v. Harper?

Both before and during the argument in Moore v. Harper, I wrote about the possibility that the Court might think about extending the approach in the CJ Rehnquist’s Bush v. Gore concurrence – which was about state court statutory interpretation – to the domain of state court constitutional interpretation.  I’ve also suggested that this approach is more difficult in the constitutional domain, given the much higher level of generality at which most constitutional provisions are drafted.

To explain those difficulties further, it might be useful to ask how the Supreme Court’s own major precedents concerning the law of democracy would fare under this approach – that is, if state courts had rendered similar decisions under similar state constitutional provisions, before the Supreme Court had issued these rulings, would any or all of those decisions violate what I’ll call the Moore v. Harper test?  As one version of that “test” discussed at argument, I’ll use the precise version Don Verrilli articulated:  “And we think the standard is that you’d ask whether the state decision is such a sharp departure from the state’s ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law.”

The reason I raise this issue is most major Supreme Court precedents in this area represented fairly avulsive changes in constitutional law.  I’ll highlight some of the more important ones, in chronological order.  I won’t try to resolve the issue of how these decisions would fare under the “fair and substantial basis in law” standard, and the debate about that might vary from decision to decision.  But these cases present the types of questions federal courts would have to answer about state constitutional interpretations under the Verrilli test (or any version of such a test):

  • Reynolds v. Sims (1964):  establishing under the EP clause the one-person, one-vote rule, despite Court precedent and long historical practice. 
  • Harper v. Va. State Bd. of Elections (1966) and Kramer v. Union Free School District No. 15 (1969):  recognizing for the first time that the right to vote is an unenumerated fundamental right under the EP clause and applying strict scrutiny to voting laws.
  • White v. Regester (1973):  holding that the form of an election structure (at-large elections or multi-member districts) could constitute unconstitutional racial vote dilution.
  • Davis v. Bandemer (1986):  recognizing a cause of action under the EP clause for partisan gerrymandering challenges. 
  • Bush v. Gore (2000):  holding for the first time that the EP clause applies to the way individual ballots are treated in a statewide election.

This is not to say that any decision which breaks new ground might raise issues under the “fair and substantial basis in law” standard.  For example, although Buckley v. Valeo (1976) constituted the first time the Court struck down limits on campaign spending as a violation of the First Amendment, a substantial body of FA law existed by then on which the issues in Buckley could be debated.  Whether one thinks Buckley was rightly or wrongly decided, I don’t think there’s any likelihood the decision would fail this “fair and substantial basis” test. 

But the law of democracy decisions I’ve noted raise more challenging questions under that test because they constituted much more sharp breaks, under the broad generalities of the EP clause, from prior doctrine (and from long-standing historical practice and the original public understandings of the clause).  None of this is to say anything about the correctness of any of these decisions; the question is how they would fare in the search for decisions that go so far beyond a “fair and substantial basis test” that they would violate the federal constitution if decided by a state court initially under a state constitutional provision with similar history and precedent (these issues are related to a talk I gave on “Originalism and the Law of Democracy,” on a panel at which then-Seventh Circuit Judge Amy Coney Barrett also spoke, at which I argued that originalists had not yet addressed how much of the law of democracy was inconsistent with originalist principles).

To bring this to bear on the NC decision at issue in Moore, compare that to the dissenting opinion for four Justices in Common Cause v. Rucho, based on the EP clause, which would have struck down certain partisan gerrymanders for the first time in the Court’s history.  It’s hard to imagine that an opinion four Justices on the Supreme Court issued would – if a majority opinion of a state court under analogues to the EP clause – fail this “fair and substantial basis” test.  If the answer is that’s because Davis v. Bandemer had already been decided, that just pushes the question back one step:  would Davis v. Bandemer violate this test?

These are the kinds of questions the Court inevitably is going to have to grapple with if it concludes that the Elections Clause is violated when state constitutional-law decisions lack a “fair and substantial basis” in law. 

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Addressing a Key Issue Discussed at Length in Moore v. Harper Argument

I’m going to re-up a post of mine from Dec. 3rd on this issue: how relevant should the Bush v. Gore concurrence on statutory interpretation, which CJ Rehnquist authored, be in considering the role of state courts in interpreting the state constitution? I think the significant differences in the nature of these sources of law suggests that it is a far more difficult inquiry to judge when a constitutional interpretation “is not a fair interpreation” from the text of a constitution than it is to decide when a statutory interpretation “is not a fair interpretation” of the statutory text:

The ISLT: How State Constitutions and Statutes Differ.

With the argument coming up next week in Moore v. Harper, I’ve thought more deeply about some of the less obvious legal issues underlying the case.  I plan to do a few posts on these issues.

At least several Justices on the Court are surely inclined to endorse the version of the ISLT that was expressed in Bush v. Gore’s three-Justice concurrence, which then-Chief Justice Rehnquist wrote.  This version is about federal constitutional constraints on state actors – such as judges or election administration officials – when they interpret and apply state statutes that regulate federal election.  In this version, state actors cannot depart from what “a fair reading” of the state election code provides.  This version is not about whether state constitutions can constrain state statutes regulating federal elections and is not directly at issue in Moore.  Nonetheless, it makes sense to consider how to think about the implications of the Bush v. Gore concurrence for the issue directly involved in Moore.

The question I want to raise can be put this way:  if I’m a Justice inclined to accept the Bush v. Gore concurrence’s version of the ISLT, does that logically mean I must also believe state courts similarly cannot depart from what “a fair reading” of the state’s constitution provides in judging the constitutionality of state statutes that regulate federal elections?  But here, a dramatic difference between statutes and constitutions as sources of law must be considered.  State statutes will generally be far more specific and detailed, with provisions that interact with other provisions in the statute, than state constitutions.  In the federal context, compare the difference between Title VII, or the 1964 Civil Rights Act as a whole, with the Equal Protection clause.  Because statutory law generally tends to be much more specific, more fully fleshed out, much more detailed, and because individual provisions work together as part of what the Bush v. Gore concurrence called a “legislative scheme,” state election statutes provide much firmer traction than state constitutional provisions for judging what constitutes a “fair reading” of the source of law.  To shift the metaphor, state statutes can anchor judgments of what constitutes departing “too far” from the statutory text and scheme than can most state (or federal) constitutional provisions.

General or broad state constitutional provisions take on more determinate content through the development of precedents.  The text of these provisions is frequently so general that by itself, it does not provide a deep anchor for judgments of what constitutes a “fair reading:” that’s what judges on a state’s highest court frequently disagree about.  But it’s also the case that these provisions might not have been applied all that often to state election statutes that regulate federal elections.  Here is another difference with state statutes:  state election statutes are routinely applied to a range of elections and thus a substantial body of interpretation is much more likely to have developed over years to implement these statutory provisions.  Once again, that provides a much deeper anchor for judging when state actors have departed from a “fair reading” of the statutory framework than from a broad state constitutional provision.  A “plain meaning” rule for statutory terms, for example, is easier to envision than a “plain meaning” rule for highly general constitutional provisions.

If the Court is going to hold that state constitutional provisions cannot be applied at all to these statutes, none of this is relevant.  But for Justices who conclude state constitutional provisions can be enforced, but who wonder whether the principle from the Bush v. Gore concurrence should be extended to state judicial interpretation of state constitutional provisions – so that interpretations that depart from a “fair reading” of the state provisions violate the federal constitution – these significant differences between statutes and constitutions as sources of law need to be considered.

Post-Argument Update: At argument, there was a good deal of discussion — and some disagreement among advocates arguing in support of the NC court’s decision — regarding whether the formal legal standard for when a state court has gone too far beyond a “fair reading” of the relevant legal text should vary depending on whether it’s a statute or a state constitution being interpreted. My points above about the differences between interpretation of statutes v. constitutions remain the same regardless of what the formal standard is. Perhaps these points provide reasons that the standard for a beyond the pale constitutional interpretation should be higher than for a statute. But even if the standards for statutes and constitutions are the same, the key question would be what those standards would mean in application. And as noted above, federal courts would have a much deeper anchor in state law most of the time when it comes to statutes rather than constitutions. Put another way, there is likely to be a more objective basis for federal courts to determine when the application of a statute has gone too far beyond the statutory text and scheme than for a constitutional provision. Statutory tests are far more detailed; they are applied regularly to election issues; election statutes often interact with each other; there is more likely to be a thickly developed body of state judicial interpretation of election statutes than constitutional provisions. For these and related reasons, federal courts would have much less of a firm foundation in deciding state constitutional interpretations had “gone too far” than state statutory interpretations.

Further Update : On re-reading the transcript of the argument, I noticed that Don Verrilli made this same point — that the application of whatever standard the Court might adopt ought to be different in the context of constitutional interpretation, given the distinct nature of constitutions compared to statutes:

Verrilli: “And so I — I could see in application the standard might work out differently in some cases but I don’t think it’s a difference in the standard as much as the application of the standard.”

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The ISLT:  The Remedial Version

In my testimony to the House outlining different potential versions of an ISLT the Court might adopt, I mentioned a remedial version of such a doctrine.  Without endorsing it, I want to explain further what this version would mean.

This version would apply only to the stage of remedying violations of the state constitution.  The state courts would still have all their normal powers of determining whether state election statutes regulating national elections are consistent with the state constitution.  But if the state court does find a violation, it would have to give the legislature the first opportunity at enacting a new statute in timely fashion that remedies the violation (except in cases of the urgent need for a remedy, which can occur in the context of elections).  The Supreme Court has recognized already that governors retain their power to veto such laws; the Court has also held that if states authorize a voter referendum to veto or approve state laws, the voters can also veto election laws that the state legislature has passed.  When state courts apply the state constitution to invalidate a state law for violating the state constitution – including state laws regulating federal elections – the state courts are similarly, in effect, vetoing that law.  Thus, a recognition that state courts can hold these state laws unconstitutional, just as governors or voters can veto them, would acknowledge that state courts have an analogous role to that which the Court has accepted already for these other actors (if state law has authorized that role). 

While governors can veto state election laws, they cannot enact them.  The remedial version of the ISLT would view courts in similar fashion.  In terms of the Constitution, the justification for this version would be that, when state courts decide on the constitutionality of laws, they are acting in a judicial role, but when they adopt new policies in the context of remedying these violations, they have intruded on “the legislature’s” role as assigned by the Constitution.  Holding a state statutory deadline unconstitutional involves the former, judicial function; deciding what the new deadline ought to be crosses over – in this version of the ISLT – into the legislative role.  Similarly, holding a map unconstitutional involves the judicial role; designing the new map crosses over into the legislative role.  On this version, the courts must give the legislature the first opportunity to remedy the violation, subject to appropriate time constraints. 

This version of the ISLT would apply to the state courts similar principles that the Supreme Court applies to the lower federal courts in remedying constitutional violations, such as those involved in redistricting.  In Upham v. Seamon, 456 U.S. 37 (1982), for example, the Court held:  “In fashioning a reapportionment plan or in choosing among plans, a district court should not preempt the legislative task nor ‘intrude upon state policy any more than necessary.'” (quoting earlier cases).  The remedial version of the ISLT is also the one endorsed by Professors Michael McConnell and William Baude in their Atlantic essay; these conservative scholars might well reflect the views of several Justices.  That’s part of why the remedial version of an ISLT is worth discussing. Of the various versions of a potential ISLT, this one also would be the least disruptive to the way state constitutions and state courts have functioned in this arena.

If the Court were inclined to accept the remedial version of an ISLT, I would hope that Court would recognize that, in the election context, extreme time pressures can be present that require the rules to be settled quickly.  Even if the general principle is that state courts must give legislatures the first opportunity to remedy any violation, if the need for a remedy is so urgent that reasonable time does not exist for the legislature to create the remedy, the courts would be authorized to impose a remedy.  Otherwise, there is a risk of chaos and confusion:  the court strikes down a deadline, but there is insufficient time for the legislative process to generate a new deadline.  Similarly, if when given the first opportunity to adopt a remedy, the legislature’s remedy is itself still unconstitutional, then the courts would have the power to impose a remedy.  Otherwise, this approach would give legislatures incentives to defy the state courts repeatedly.

How would the remedial version apply to the two main state supreme court decisions – from NC and PA — that have been the focus of much debate about the ISLT? 

In NC, the state courts did give the legislature a first opportunity to enact new congressional maps, after the initial ones were held to violate the state constitution.  But the courts found that remedial map to continue to be in violation of the state constitution; only then did the state courts impose a new map.  In PA, the state supreme court decision ordering a new date by which absentee ballots could be received and still be valid was handed down on Sept. 17, 2020.  The court did not give the legislature a chance first to create a remedy; whether there would not reasonably have been sufficient time for a legislative remedy would depend on factual circumstances I’m not in a position to assess.

As this discussion suggests, the remedial version of the ISLT would still generate questions about how long it is appropriate, if at all, to hold open time for a legislative rather than judicial remedy.  But the remedial version would be less disruptive than holding state constitutions cannot be enforced at all, or that general but specific provisions cannot be enforced.

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The ISLT:  How State Statutes and State Constitutions Differ

With the argument coming up next week in Moore v. Harper, I’ve thought more deeply about some of the less obvious legal issues underlying the case.  I plan to do a few posts on these issues.

At least several Justices on the Court are surely inclined to endorse the version of the ISLT that was expressed in Bush v. Gore’s three-Justice concurrence, which then-Chief Justice Rehnquist wrote.  This version is about federal constitutional constraints on state actors – such as judges or election administration officials – when they interpret and apply state statutes that regulate federal election.  In this version, state actors cannot depart from what “a fair reading” of the state election code provides.  This version is not about whether state constitutions can constrain state statutes regulating federal elections and is not directly at issue in Moore.  Nonetheless, it makes sense to consider how to think about the implications of the Bush v. Gore concurrence for the issue directly involved in Moore.

The question I want to raise can be put this way:  if I’m a Justice inclined to accept the Bush v. Gore concurrence’s version of the ISLT, does that logically mean I must also believe state courts similarly cannot depart from what “a fair reading” of the state’s constitution provides in judging the constitutionality of state statutes that regulate federal elections?  But here, a dramatic difference between statutes and constitutions as sources of law must be considered.  State statutes will generally be far more specific and detailed, with provisions that interact with other provisions in the statute, than state constitutions.  In the federal context, compare the difference between Title VII, or the 1964 Civil Rights Act as a whole, with the Equal Protection clause.  Because statutory law generally tends to be much more specific, more fully fleshed out, much more detailed, and because individual provisions work together as part of what the Bush v. Gore concurrence called a “legislative scheme,” state election statutes provide much firmer traction than state constitutional provisions for judging what constitutes a “fair reading” of the source of law.  To shift the metaphor, state statutes can anchor judgments of what constitutes departing “too far” from the statutory text and scheme than can most state (or federal) constitutional provisions.

General or broad state constitutional provisions take on more determinate content through the development of precedents.  The text of these provisions is frequently so general that by itself, it does not provide a deep anchor for judgments of what constitutes a “fair reading:” that’s what judges on a state’s highest court frequently disagree about.  But it’s also the case that these provisions might not have been applied all that often to state election statutes that regulate federal elections.  Here is another difference with state statutes:  state election statutes are routinely applied to a range of elections and thus a substantial body of interpretation is much more likely to have developed over years to implement these statutory provisions.  Once again, that provides a much deeper anchor for judging when state actors have departed from a “fair reading” of the statutory framework than from a broad state constitutional provision.  A “plain meaning” rule for statutory terms, for example, is easier to envision than a “plain meaning” rule for highly general constitutional provisions.

If the Court is going to hold that state constitutional provisions cannot be applied at all to these statutes, none of this is relevant.  But for Justices who conclude state constitutional provisions can be enforced, but who wonder whether the principle from the Bush v. Gore concurrence should be extended to state judicial interpretation of state constitutional provisions – so that interpretations that depart from a “fair reading” of the state provisions violate the federal constitution – these significant differences between statutes and constitutions as sources of law need to be considered.

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NC Chooses Most Extreme Position on Independent State Legislature Theory

When NC filed its opening brief in the independent state legislature case, Moore v. Harper, I commented on this blog that NC’s brief wavered between taking (1) the extreme position that state courts cannot impose any substantive limits on state federal election statutes and (2) it is only so-called “vague” or “general” provisions that they cannot enforce.

Yesterday, NC filed its reply brief and that brief firmly rests its case on (1) the more extreme position. Here’s an example:  “But the question is not whether judicial review is available, but rather what substantive rule of decision applies: that found in the federal Constitution and laws alone or also that found in the state’s constitution. The text of the Elections Clause provides the answer: it assigns state legislatures the federal function of regulating congressional elections.” That is, no matter how specific a state constitutional provision is, it cannot be enforced against state statutes regulating federal elections.”  In other words, only federal law can provide the rule of decisions regarding the legality of state statutes regulating federal elections.

Why did NC ultimately decide to abandon (2), the more narrow position? Perhaps because NC realized what a maze of issues position (2) would generate.

For example, if state courts can only enforce “specific” provisions, how specific is specific enough? Many constitutional provisions, state and federal, are written in broad terms. Does it matter if a state court has given such a provision — say a right to vote provision — more specific content through development of precedents?  If so, does that mean the same provision could be enforced in a state where precedent has been developed on that provision but not in a state where the state courts have not yet developed precedent on the provision?

The position that state courts can apply specific but not general provisions seems to reflect an intuition that the former involves interpretation but the latter is more like lawmaking.  In essence, this involves trying to draw a line between when courts are interpreting a constitution rather than “legislating.” But that is one of the oldest and most long-enduring debates in constitutional theory and in argument over court decisions.

Thus, to endorse position (2) would be to constitutionalize the debate over when courts are interpreting a constitutional provision versus legislating when they apply a provision.  Perhaps that’s why NC abandoned this position and chose the all-or-nothing approach: state court cannot enforce any state constitutional provision against state laws regarding federal elections.

In my testimony to the House on the independent state legislature doctrine, here, I highlighted some of these problems with position (2) – the position that state courts can enforce specific but not general constitutional provisions re federal elections.

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“The Time to Stop a Runaway Presidency is Before it Starts”

I’ve posted this essay, at the Yale Journal of Regulation, which is running a symposium on Peter Shane’s new book, “Democracy’s Chief Executive”. My essay is the first of what will be fourteen essays — one a day — from scholars of the presidency in response to Shane’s book.

Here’s an excerpt from my essay:

…[I]n leaving the confines of constitutional doctrine, Shane neglects the biggest institutional change to the presidency in the last 50 years – the process we now use for selecting the major parties’ candidates for the presidency. Indeed, apart from the Voting Rights Act, this is arguably the single most dramatic institutional change we have made to American democracy in the last half century. This was the shift from the process that had been used for nearly 170 years in one form or another, in which elected party figures from throughout the country had a major say in who the party put forward for the presidency, to the purely plebiscitary system of today in which voters in primary elections (and a few caucuses) completely determine who “the party” nominates. Among major democracies, this makes the United State a complete outlier in how populist a method we use to select our candidates for the most powerful position in the world.

When Arthur Schlesinger, Jr., wrote his magisterial 1973 work, The Imperial Presidency he struggled to find the balance between his view that the country requires a strong presidency and the risk of a runaway presidency. After considering a range of possible legal and institutional reforms, Schlesinger was left to conclude that, in the end, what keeps a strong President constitutional are mainly public vigilance and “checks and balances incorporated within his own breast.” If that is indeed the case, the method by which we select the two major contenders for the office is – or should be – one of the most critical guardrails to keeping the strong presidency within appropriate bounds. The most effective time to stop a runaway presidency is before it gets started.

The convention system was never as simple nor as bad as some of its critics painted it. It was not a system in which only “party bosses” chose the nominees. Primaries played a role; in 1968, on the eve of the convention system’s abandonment, 16 or 17 states held primaries. They were a means by which more outside candidates could show skeptical party figures that they were credible candidates who could compete effectively. But no candidate could succeed without also winning over enough institutional party figures from throughout the country. By ensuring a nominee appealed broadly enough to different factions within the party, the convention system did a fairly good job of filtering out extremists and demagogic figures who pose the greatest risk in an inevitably strong American presidency. Elected party figures typically had familiarity with the major internal party contenders, and could also exercise a type of “peer review” about the competence and fitness for office of contenders. The system avoided 20 or more candidates competing, in which candidates struggle to stand out, sometimes by taking more and more extreme positions. 

To be sure, the convention system had its flaws, most particularly the racially-exclusionary practices of Southern Democratic state parties – practices the Voting Rights Act would soon begin to end. And the post-1968 system of primaries has produced several good candidates. But in designing democratic institutions, there is always the question whether we should design them with the best case in mind, the average case, or to avoid the worst-case prospects. The convention system did a decent job of insuring against the latter. 

In recent years, several major European democracies have moved a bit in the American direction by taking the selection process for party leaders partially out of the hands of elected party leaders and opening the choice up to party members. This is still nothing like the purely populist system we use; to be a party member in these other democracies requires a much thicker connection to the party, such as paying annual dues. The U.K. Conservative Party, for example, has under 200,000 members. But these European parties are beginning to recognize they made a mistake in opening up the selection process even to this extent. Even these smaller party electorates than in the U.S. are more ideologically extreme than voters more generally and less able to judge the competence of candidates to govern. 

In France, for example, the two traditionally dominant used primaries to choose their nominees for the 2017 presidential election. Both candidates came from the more populist wings of the parties, and both were badly defeated in the general election. While there were many reasons for that, the French parties quickly concluded they had made a mistake. These two parties have ended the use of primaries and returned the choice of party leaders to party officials. 

Meanwhile, opening up the selection process to primary voters in the U.K. led to such poor choices that it wrecked both the Conservatives and the Labour Party. Labour began giving members a role in 1994, then expanded that role by making it easier to become a party member. That resulted in the 2015 selection of Jeremy Corybn as party leader, due to strong support from primary voters, despite the fact Labour Party members in parliament never would have chosen him and knew he’d take the party down with him – as he did. Starting in 2001, the Conservatives let their members in Parliament winnow down the field to two candidates, then submitted those to party members for final decision. Liz Truss was not the preferred choice of Conservative members in parliament, but she was the more extreme candidate who appealed most to the party electorate, themselves more ideologically extreme than Conservative voters more generally. Her immediate collapse in office has left the Conservative Party even more tattered. Surely a re-consideration of opening up the selection process in these ways must be taking place now in the U.K. 

 To be sure, the political culture in the U.S. is such that we are not going back fully to the convention system anytime soon. But if we, like Shane, want to understand and minimize the risks of electing presidents with little understanding of the nature and principles of American government or respect for them – or the authoritarian figure Shane wants to rein in – we need to recognize one major root of the risk. Some are working on ways to build back in at least some role for party figures in the selection process. One suggestion is to structure the awarding of delegates from primaries in a way that makes a brokered convention, in which party figures would have to play a key role, more likely. Others suggest members of Congress might rank candidates early in the process, with those rankings potentially being used in various ways, including giving them some weight in which candidates make the main debate stage during the primaries.

I’ll give the last word to Schlesinger, who in the early 1970s could still rely on the convention-based selection system as the strongest barrier to a runaway presidency: “In giving great power to Presidents, Americans have declared their faith in the winnowing processes of politics. They have assumed that these processes, whether operating through … the congressional caucus or still later through the party conventions, will eliminate aspirants to the presidency who reject the written restraints of the Constitution and the unwritten restraints of the republican ethos.” Soon after, we abandoned that winnowing process. We have learned what has followed, not yet what might be to come.

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